Martijn Keeman (University of Amsterdam) has sent in the following report in which he analyses the panel debate and dwells on the complementary role of both the public and private sectors in solving the climate change dilemma. His emphasis on private sector initiatives mirrors the stress placed by some participants at the world financial crisis panel on the role of the private sector in averting another crisis.
Report by Martijn Keeman
The thread of this session was whether international law could steer a favourable outcome for the next conference in Mexico or even drive the effort to mitigate harmful climate change, as the outcome of Copenhagen is still crystallizing at best. When political leadership seems to be failing, can international law take the lead and promote or enforce policy changes?
Cancun (the next and 16th UN conference of parties to the Climate Change Convention scheduled for November and December 2010) was, of course, never intended to be the final stop on the road to tackling climate change, but the panellists shared the view that there was unfortunately little prospect of a global agreement on emission reduction emerging from the conference. Professor Murase already wished to look beyond Cancun for policy changes to come, and Professor Gupta concurred in that the momentum seemed to have halted after the Copenhagen conference.
The reality is that in states' parlance as of now, ‘E’ is for economy and not for environment.
It therefore seems a sad but realistic expectation that the 16th Conference of the Parties (COP 16) would become another COP out on commitments. The question remains as to how international law can shift the focus back to this global and urgent problem. As mentioned in Professor Rajamani’s blog contribution, Murase and Gupta disagreed on whether to take a flexible bottom-up approach starting from the market sector or a rigidly enforceable policy imposed top-down from governments.
These differences in approaching the problem can be traced back to where one puts one’s confidence. Murase's free market mechanism envisages a situation in which companies would decide for themselves what a realistic and/or desirable norm should be, and would themselves set the corresponding targets. These targets would then be internationalised through negotiations via the WTO model. Gupta, on the other hand, feared that leaving it up to the markets and individual countries would result in the process ending up being held hostage to their willingness. However, Gupta’s view strikes a different tone from that which the companies themselves adopted at Copenhagen last year. They had claimed to be willing and ready to further the process and that it was up to the political leadership to provide them with the clarity of political decisions.
The general view of Copenhagen is of a situation in which governments attempted to find solidarity and common grounds, but ultimately failed because they were unable to transcend their own, particular interests. Globally operating companies have a point when they claim to be able to overcome such obstacles in an efficient way, albeit that they have their own interests, and grassroots solutions are known to stimulate more sense of ownership of problem and solution alike, which in turn stimulates participation. One of the risks is that companies might move production to less demanding states. The more developing states want to stress 'differentiated' over and above 'common' responsibilities, the more pertinent this risk will become. Moreover, flexible mechanisms such as emission trading and the Clean Development Mechanism (CDM) have their own dynamics in which misuse and abuse can take place, that governments would need to keep in check. For instance, the financial reward for destroying gasses through the CDM can be so high that factories are tempted to start producing more gasses than their actual original product. The amount of gasses destroyed this way would be an obvious false positive. Besides, after the credit crunch, not many people still believe in an open market absolutely free from government intervention. In other words, the panellists' debate on bottom-up or top-down approach seems just as obsolete and irrelevant as the debate on nature vs nurture, as the two should complement each other.
It would have been great if the debate at the panel had gotten more linked to the overarching theme of the conference programme, in particular the integration of human rights in civil cases. Corporations as well as governments can be held accountable not just among themselves, but also by the people. International human rights such as the right to life could be invoked in the context of the climate change debate where for example, water is insufficiently provided or diseases are rampant due to the pollution of the living environment. The quality of life could also become an easier factor to measure in terms of the impact of climate change. Dr Salomon had much to contribute to the session on these topics. A very interesting idea of hers was to give more weight to the situation of indigenous peoples, who often feel enormously connected to and responsible for a certain area to a literally existential point, that they could do much more as stewards of that area. Whether that would make a watershed difference is questionable, but it would certainly be a great start and even a great example of how the private sector can contribute to solving the problem of climate change.
Turning the attention to (groups of) people this way, the shift in dimension from international law as law between sovereign states, to a system in which corporations become actors, and in which we most directly serve the interest of human dignity, would be completed. The problem of states staving off change in order to protect particular interests would solve itself in the same way the problem of (non) recognition of states would solve itself when we truly arrive at a ius humanitatis. In the words of the Dutch Minister of Justice Ballin during his opening speech, we would then get the guarantee that people are right to put their confidence in international law.
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