Ungoverning the climate

ABSTRACT

In this article I canvass four kinds or ‘modes’ of ungovernance, which I characterise as agnostic, experimental, inoculative, and catastrophic. I then turn to climate change, and the questions of climate governance and climate equity, which, I argue, exemplify each of these four modes in different ways. The fact of climate change might be characterised as the materialisation of ungovernance, insofar as it is the incidental or accidental outcome of an aggregate of rational decisions underpinned by a vast but selective regulatory apparatus. But more poignantly, the international law apparatus that has grown up around the climate problem presumes and embeds uncertainty regarding any resolution.

KEYWORDS:

• Climate change
• climate governance
• equity
• IPCC
• ungovernance

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 The literature on ‘climate governance’ is now extensive. For eg: Frank Biermann, Phillipp Pattberg and Fariborz Zelli, Global Climate Governance Beyond 2012: Architecture, Agency and Adaptation (Cambridge University Press, 2010); Sverker C Jagers and Johannes Stripple, ‘Climate Governance Beyond the State’ (2003) 9(3) Global Governance 385; Daniel H Cole, ‘From Global to Polycentric Climate Governance’ (2011) 2 Climate Law 395; Matthew J Hoffmann, Climate Governance at the Crossroads: Experimenting with a Global Response after Kyoto (Oxford University Press, 2011); Joanne Scott, ‘The Multi-level Governance of Climate Change’ (2011) 5(1) Carbon Climate Law Review 25; Jacqueline Peel and others, ‘Climate Change Law in an Era of Multi-Level Governance’ (2012) 1(2) Transnational Environmental Law 245; Kenneth W Abbott, ‘Strengthening the Transnational Regime Complex for Climate Change’ (2014) 3(1) Transnational Environmental Law 57; Babette Never, ‘Regional Power Shifts and Climate Knowledge Systems in (Global) Climate Governance’ (2010) 2(1) Goettingen Journal of International Law 311; Massimiliano Montini, ‘Re-shaping Climate Governance for Post-2012’ (2011) 4(1) European Journal of Legal Studies 8; Harriet Bulkeley and others, Transnational Climate Change Governance (Cambridge University Press, 2014).

2 See Andreas Malm, Fossil Capital (Verso, 2016), especially 309–326.

3 Valerie Masson-Delmotte and others (eds), Global Warming of 1.5°C. An IPCC Special Report (IPCC, 2018) 352 (citing earlier IPCC reports). ‘This definition’, the report adds, ‘goes beyond notions of formal government or political authority and integrates other actors, networks, informal institutions and communities’.

4 Ibid, 17, 95. The report sets much store in what it terms ‘enhanced multilevel governance’ (354, 355, 384).

5 I provide more detailed definition further below, Section 3. See Deval Desai and Andrew Lang, ‘Introduction: Global Un-Governance’ (2020) 11(3) Transnational Legal Theory, this issue.

6 The IPCC’s Sixth Assessment Report concretises the cartographic dimension of IPCC work through the instantiation of an interactive ‘atlas’. A thorough account of the historical construction of the climatological map—dwelling in particular on the extensive work to produce local site-specific knowledge everywhere in order to create a single viable global picture—is provided in Paul N Edwards, The Vast Machine (MIT Press, 2012).

7 A full account of the IPCC as an authoritative and novel international norm-generating body has yet to be written. In the meantime, an excellent text is Clark A Miller, ‘Climate Science and the Making of Global Political Order’ in Sheila Jasanoff (ed), States of Knowledge: The Co-Production of Science and the Social Order (Routledge, 2004), 46–66.

8 See eg, IPCC (n 3) 352–380. The IPCC’s SR15 devotes lengthy passages to ‘governance’, referencing texts that often themselves rely heavily on the work of the IPCC.

9 See eg, Ibid. Using the blunt tool of wordcounts, the IPCC’s SR15, a relatively short report (630 pages as against the 3,000+ pages of the Assessment Reports), includes 2,112 references to the term ‘system’ and over 700 references to ‘sectors’, as against 51 to ‘regime’. There are over 600 references to ‘ecosystems’, over 100 to ‘energy systems’ and over 60 to ‘food’ or ‘agricultural’ systems. In the main, however, terms like ‘transport’, ‘energy’, ‘food’, ‘industry’, ‘agriculture’, and ‘buildings’ are used to indicate global systemic activity without qualification as either ‘system’ or ‘sector’ (much less ‘regime’).

10 Through the International Civil Aviation Authority and the International Air Transport Association.

11 See eg, Jagers and Stripple (n 1) 385. Jagers and Stripple define governance as: ‘all purposeful mechanisms and measures aimed at steering social systems toward preventing, mitigating, or adapting to the risks posed by climate change’. See too Bulkeley and others (n 1) 14–21; Hoffmann (n 1) 12.

12 Mitigation policy is concerned with the limitation and stabilisation of greenhouse gas concentrations in the atmosphere (globally); adaptation with guiding and altering the economic and living conditions appropriate to a warmer world (locally). It is true that ‘mitigation’ technologies constitute a form of adaptation, insofar they also entail adaptation to a low carbon world, and that adaptation policies have a mitigation dimension, insofar as they must factor in their greenhouse gas contribution. This does not, however, disturb their conceptual distinctiveness; indeed, it rather reinforces it.

13 United Nations Framework Convention on Climate Change (adopted 4 June 1992, entered into force 21 March 1994) 1771 UNTS 107 [UNFCCC], art. 2; Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016) FCCC/CP/2015/10/Add 1, art. 2.

14 To give a stark example, the Financial Times reports that the natural resources giant BHP intends to ‘spend up to $4bn to reduce environmental footprint but will still invest in oil and gas’. Neil Hume, ‘BHP Targets 30% Cut in Carbon Emissions by 2030’ Financial Times (London, 10 September 2020).

15 This complexity is underlined in the claim that the burgeoning (and presumably adversarial) space of climate-related litigation itself forms part of ‘climate governance’. See eg Jacqueline Peel and Hari Osofsky, Climate Change Litigation: Regulatory Pathways to Cleaner Energy (Cambridge University Press, 2015) 10–16: ‘climate change litigation matters in overall climate governance because of the significant part it can play, is playing, and is likely to play in shaping decision making and the regulatory landscape relating to climate change across various levels of governance’.

16 It is this circumstance that gives rise, in much of the existing ‘climate governance’ literature, to the centrality of terms such as ‘polycentric’, ‘multilevel’, ‘experimental’, and ‘fragmented’. See Cole (n 1), Scott (n 1), Peel (n 1), Hoffmann (n 1) and, also on polycentricity, Elizabeth Fisher, Eloise Scotford and Emily Barritt, ‘The Legally Disruptive Nature of Climate Change’ (2017) 80(2) Modern Law Review 173.

17 For eg, Bulkeley and others (n 1) 18; Hoffmann (n 1) 12; Jagers and Stripple (n 1) 385. Bulkeley and others focus on those initiatives that ‘explicitly [seek] to address climate change’. As do Hoffmann, and Jagers and Stripple. Others apply the same criterion albeit implicitly. See eg, Bierman and others (n 1); Cole (n 1); Montini (n 1); Abbott (n 1); Scott (n 1).

18 The point is (almost) captured in Bierman and others, who outline a model ‘conflictive’ governance architecture, comprising (1) ‘different, largely unrelated institutions’ having (2) ‘core norms conflicts’ and with (3) ‘major actors supporting different institutions’—but they then, curiously, do not categorise climate governance as ‘conflictive’. See Bierman and others (n 1) 18–21.

19 See text at note 4 above.

20 Lang and Desai (n 5).

21 Friedrich Hayek, Road to Serfdom (University of Chicago Press, 1994) 78. The line of thinking goes back to Hayek's teacher, Ludwig von Mises.

22 See Stephen Humphreys, Theatre of the Rule of Law (Cambridge University Press, 2010) especially chapters 4 and 6.

23 For an intriguing analysis, Jonathan White, ‘Emergency Europe’ (2015) 63(2) Political Studies 300.

24 See Fleur Johns, Non-Legality in International Law: Unruly Law (Cambridge University Press, 2013) especially chapters 1 and 4. Johns is specifically concerned with the role international law and lawyers play in ‘making non-legalities’ (1), but the argument applies equally to bodies of law that are not explicitly ‘international’.

25 Humphreys (n 22) especially chapter 5.

26 Lang and Desai (n 5).

27 See David Gee and Andrew Sterling, ‘Late Lessons from Early Warnings: Improving Science and Governance under Uncertainty and Ignorance’ in Joel Tickner (ed), Precaution, Environmental Science, and Preventive Public Policy (Island Press, 2003).

28 Fleur Johns, ‘From Planning to Prototypes: New Ways of Seeing Like a State’ (2019) 82(5) Modern Law Review 833. Also see London School of Economics and Political Science, ‘From Planning to Prototypes: New ways of seeing like a state – Professor Fleur Johns’ (14 February 2017), podcast, online: <https://www.youtube.com/watch?v=H2n56th-cEY>.

29 Ibid, 854–6. Johns further describes: ‘In brief, a lean start-up approach favours “experimentation over elaborate planning, customer feedback over intuition, and iterative design over traditional ‘big design up front’ development”’ (855) (citing Steve Blank’s ‘Why the Lean Start-Up Changes Everything’, Harvard Business Review, May 2013).

30 See Stephen Humphreys, ‘Laboratories of Statehood’ (2012) 75(4) Modern Law Review 475.

31 See eg, Stephen Humphreys, ‘Structural Ambiguity: Technology Transfer in Three Regimes’ in Margaret Young (ed), Regime Interaction in International Law: Facing Fragmentation (Cambridge University Press, 2011).

32 Ibid.

33 What I have in mind here is metonymic, rather than exemplary, of the larger ‘immunological’ function of law described by Roberto Esposito, for whom ‘the primary goal of law is to immunize the community’ by ‘preserv[ing] peaceful cohabitation among people naturally exposed to the risk of destructive conflict’. Roberto Esposito, Immunitas: The Protection and Negation of Life (trans Zakiya Hanafi, Polity, 2011 [2002]) 21–2. For Esposito, in order to preserve the community, ‘law empties community of its core meaning’ by insuring against expropriation, which is ‘community’s most intrinsic, natural inclination’ (22). If we accept this, the ‘inoculation’ I envisage here inverts Esposito’s elegant model, creating a legal space wherein the inevitable contamination of communitarianism can be contained and monitored, but remaining a form of ‘exclusionary inclusion’ (8).

34 There is a thoughtful discussion in the Introduction to Events: The Force of International Law: ‘An event “in the strong sense” [quoting Jacques Derrida] would suppose an “irruption that punctuates the horizon, interrupting any performative organization, any convention, or any context that can be dominated by a conventionality. Which is to say this event takes place only where it does not allow itself to be domesticated.”’ Fleur Johns, Richard Joyce and Sundhya Pahuja (eds), Events: The Force of International Law (Routledge, 2011) 8.

35 See Gregory Fox, ‘The Occupation of Iraq’ (2005) 36 Georgetown Journal of International Law 195; Fleur Johns, ‘The Torture Memos’ in Fleur Johns, Richard Joyce and Sundhya Pahuja (eds), Events: The Force of International Law (Routledge, 2011).

36 See Naomi Klein, The Shock Doctrine (Penguin, 2008).

37 UNFCCC (n 13) art 2.

38 Oscar Guardiola-Rivera, ‘Absolute contingency and the prescriptive force of international law, Chiapas-Valladolid, ca. 1550’ in Fleur Johns, Richard Joyce and Sundhya Pahuja (eds), Events: The Force of International Law (Routledge, 2011).

39 Though my point here is slightly different, see the general argument contained in Susan Marks, ‘False Contingency’ (2009) 62(1) Current Legal Problems 1.

40 Edwards (n 6).

41 Ibid, 112–8.

42 Ibid, 117.

43 Ibid, 119–26. Neumann’s principal contribution to computer science involved a critical design intervention to the ENIAC’s successor, the EDVAC (Electronic Discrete Variable Automatic Computer)—the first binary computer—in 1946, establishing the memory architecture of the contemporary computer, the ‘Neumann Architecture’. Neumann had earlier set the ENIAC the task of predicting nuclear fallout.

44 Ibid, citing Steve Heims, John von Neumann and Norbert Wiener, From Mathematics to the Technologies of Life and Death (MIT Press, 1980) 236–47.

45 See Joeri Rogelj and others, Mitigation Pathways Compatible with 1.5°C in the Context of Sustainable Development (IPCC, 2018) 95, 100. The report notes (at 95) ‘In recent years, integrated mitigation studies have improved the characterizations of mitigation pathways. However, limitations remain, as climate damages, avoided impacts, or societal co-benefits of the modelled transformations remain largely unaccounted for, while concurrent rapid technological changes, behavioural aspects, and uncertainties about input data present continuous challenges. (high confidence)’ The words ‘behavioural aspects’ carry a particularly heavy load in this sentence.

46 UNFCCC (n 13) art 2.

47 Michael Grubb, ‘Full Legal Compliance with the Kyoto Protocol’s First Commitment Period – Some Lessons’ (2016) 16(6) Climate Policy 673; Kyoto Protocol to the United Nations Framework Convention on Climate Change (adopted 11 December 1997, entered into force 16 February 2005) 37 ILM 22.

48 This refers to Paris Agreement (n 13) art 4.

49 Christina Voigt, ‘The Compliance and Implementation Mechanism of the Paris Agreement’ (2016) 25(2) Review of European, Comparative, and International Environmental Law 161.

50 Paris Agreement (n 13) art 14. See too the UNFCCC, Report of the Conference of the Parties on its twenty-first session, held in Paris from 30 November to 13 December 2016 (29 January 2016) FCCC/CP/2015/10/Add.1, Decision 1/CP.21.

51 This point, which is plain from the treaty text, is examined in some detail in Alexander Zahar, ‘Collective Obligation and Individual Ambition in the Paris Agreement’ (2020) 9(1) Transnational Environmental Law 1. Zahar notes that Paris ‘does not provide for a process to resolve the global mitigation burden into state-level ambition commitments to ensure that the paramount objective is met’ (1).

52 See the list of countries’ nationally determined contributions (NDCs) submitted under Paris art 4 on the UNFCCC website: ‘NDC Registry (interim)’ (UNFCCC) online: https://www4.unfccc.int/sites/ndcstaging/Pages/Home.aspx.

53 Paris Decision (n 50) paras 27, 31, 42, 45, 73 and 94.

54 UNFCCC, ‘Decision 6/CP.25 Revision of the UNFCCC reporting guidelines on national communications for Parties included in Annex I to the Convention’ (16 March 2020) UN doc FCCC/CP/2019/13/Add.1 online: https://unfccc.int/sites/default/files/resource/cp2019_13a01_adv.pdf.

55 Ibid; UNFCCC, ‘Preparations for the implementation of the Paris Agreement and the first session of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement’ (14 December 2018) UN doc FCCC/CP/2018/L.22 online: https://unfccc.int/sites/default/files/resource/l22_0.pdf.

56 Eduardo Calvo Buendia and others (eds), 2019 Refinement to the 2006 IPCC Guidelines for National Greenhouse Gas Inventories (IPCC, 2019). There are five volumes, online: https://www.ipcc-nggip.iges.or.jp/public/2019rf/index.html (accessed 12 January 2020).

57 At time of writing, the mechanics of the global stocktake are yet to be decided, but see APA Item 6, UNFCCC, ‘Joint reflections note by the presiding officers of the Ad Hoc Working Group on the Paris Agreement, the Subsidiary Body for Scientific and Technological Advice and the Subsidiary Body for Implementation Addendum 7’ (15 October 2018) UN doc APA-SBSTA-SBI.2018.Informal.2.Add.7 online: https://unfccc.int/sites/default/files/resource/APA_SBSTA_SBI.2018.Informal.2.Add_.7.pdf

58 The headline objectives are to ‘Hold … the increase in the global average temperature to well below 2°C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5 °C above pre-industrial levels’. Paris Agreement (n 13) art 2(1)(a).

59 The UNFCCC’s article titles, such as ‘principles’ at article 3 and ‘commitments’ at article 4, are subject to the caveat of an asterixed footnote at the head of the treaty: ‘Titles of articles are included solely to assist the reader’!

60 Captured in a famous passage from Aristotle’s Rhetoric: ‘[I]t is equitable to pardon human weaknesses, and to look, not to the law but to the legislator; not to the letter of the law but to the intention of the legislator; not to the action itself, but to the moral purpose; not to the part, but to the whole; not to what a man is now, but to what he has been, always or generally; to remember good rather than ill treatment, and benefits received rather than those conferred; to bear injury with patience; to be willing to appeal to the judgement of reason rather than to violence; to prefer arbitration to the law court, for the arbitrator keeps equity in view, whereas the [citizen-juror] looks only to the law, and the reason why arbitrators were appointed was that equity might prevail’. Aristotle, The Art of Rhetoric (Harvard University Press, 1939), Book 1, Chapter 13, 1374b. Aristotle’s example, in the same text, makes the point explicit: ‘if a man wearing a ring lifts up his hand to strike or actually strikes, according to the written law he is guilty of wrongdoing, but in reality he is not; and this is a case for equity.’ (1374a).

61 This obvious antinomy has been largely neglected in the legal literature, although it has been the implicit stake of numerous disputes over the historical role of equity in the common law tradition. But see Irit Samet, Equity: Conscience Goes to Market (Oxford University Press, 2018) 16–28. On equity as a notional ‘feminine’ to the common law’s ‘masculine’, Susan Scott-Hunt and Hilary Lim, ‘Introduction’ in Scott-Hunt and Lim (eds), Feminist Perspectives on Equity and Trusts (Cavendish Publishing, 2001) xxxv.

62 Esposito (n 33) 8.

63 The cognate term ‘equitable’ also appears in the UNFCCC, in the relatively concrete context of a proposed climate finance mechanism (art 11), which ‘shall have an equitable and balanced representation of all Parties’. ‘Equitable’ here presumably refers to something very determinate: that the representation of states on this new finance mechanism will match their contributions—ie votes are in line with wealth. See UNFCCC (n 13).

64 Kyoto Protocol (n 47), arts 2(1), 3(1), 3(7) and 4(1).

65 See Paris Agreement (n 13), prologue, arts 2(2), 4(1) and 14(1); Myles Allen and others. ‘Framing and Context’ in IPCC (n 3), 54–56.

66 See Jonathan Pickering, Steve Vanderheiden and Seumas Miller, ‘“If Equity’s In, We’re Out”: Scope for Fairness in the Next Global Climate Agreement’ (2012) 26(4) Ethics & International Affairs 423.

67 Dinah Shelton, ‘Equity’ in Dan Bodansky, Jutta Brunnée and Ellen Hey, The Oxford Handbook of International Environmental Law (Oxford University Press, 2008).

68 For eg, the notion of ‘equity’ was central to the 2006 Stern Review’s very controversial choice of discount rate, detailed in Nicholas Stern, The Economics of Climate Change: The Stern Review (Cambridge University Press, 2006); Cameron Hepburn and Nicholas Stern, ‘A new Global Deal on Climate Change’ (2008) 24(2) Oxford Review of Economic Policy 259. Stern chose a discount rate of 1.4%, whereas a number of economists had argued for a higher discount rate—which would have assumed that the cost of dealing with climate change is considerably less for future generations than for today’s. Stern justified his approach by reference to the UNFCCC notion of equity.

69 Darien Shanske, ‘Four Theses: Preliminary to an Appeal to Equity’ (2005) 51 Stanford Law Review 2053.

70 Shelton (n 69); Edith Brown Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity (Transnational Publishers Inc, 1989).

71 Official translations are available here: https://unfccc.int/bigpicture (visited May 10, 2019). In addition to equity, équité (French) and equidad (Spanish), the translations give spravedlivost (справедливость) in Russian—a term usually translated simply as ‘justice’—‘‘iinsaf’ (إنصاف) in Arabic, which translates to ‘fairness’ as opposed to strict equality (‘musawa’ [مساواة]) but also to ‘redress’ or ‘remedy’, and in Chinese ‘gongping’ (公平), usually translated as ‘impartial’ or ‘fair’ as in ‘right to a fair trial’.

72 Michael Grubb and Michael Paterson, ‘The International Politics of Climate Change’ (1992) 68(2) International Affairs 293.

73 Again this account inverts metonymically Robert Esposito’s ‘immunological’ account of law (Esposito (n 33)). If law immunises ‘community’ from private ‘expropriation’, one might conjecture that equity immunises climate law from a (communal) backlash at the privation of the (carbon) commons.

74 Humphreys (n 31). See also Stephen Humphreys, ‘Climate, Technology, “Justice”’ in Alexander Proelss (ed) Protecting the Environment for Future Generations: Principles and Actors in International Environmental Law (Erich Schmidt Verlag, 2017) 171–89.

75 See Dann Mitchell and others, ‘The myriad challenges of the Paris Agreement’ (2018) 376(2119) Philosophical Transactions of the Royal Society, online: <https://royalsocietypublishing.org/toc/rsta/2018/376/2119> [https://perma.cc/E9HP-ENS7] as well as the remainder of this special issue on ‘The Paris Agreement: understanding the physical and social challenges for a warming world of 1.5°C above pre-industrial levels’.

76 Will Steffen and others, ‘Trajectories of the Earth System in the Anthropocene’ (2018) 115(33) Proceedings of the National Academy of Sciences 8252.

77 Ibid, 8254.

78 SH Butcher, The Poetics of Aristotle (Macmillan and Co, 1902) 41.

79 Ibid.

80 Cited, in AE Taylor’s translation, in George Steiner, ‘“Tragedy” Reconsidered’ (2004) 35(1) New Literary History 1, 2.

81 Ibid, 2–3.

82 Ibid, 5.