The impacts of climate change have been proceeding at an alarming rate all over the world. Changes in weather patterns are being reported from the Arctic to the Antarctic, from South America to East Asia, and although there are still many unresolved questions, scientific findings have shown humankind's role in these changes.
In the late 1980s the international community responded with the drafting of the United Nations Framework Convention on Climate Change (UNFCCC), which was adopted at the Rio Summit in 1992, followed by the Kyoto Protocol in 1997, which came into force in 2005, and most recently the Paris Agreement in 2015. Apart from these agreements, other instruments have also seen the light of day (although not all have come into force), such as the Bali Action Plan, the Copenhagen Accord, the Cancun Agreements and the Doha Amendment. Although the conferences at which these instruments were concluded were significant in scope, it was the Paris Agreement in particular that made the headlines. One may wonder why this is the case.
The book International climate change law provides answers to most of the questions one might have regarding the legal responses to climate change. The authors of this fascinating volume not only look at the instruments themselves, but provide deep insight into the adoption process and what led to the way they were eventually adopted (or not). In ten chapters they cover UN-based climate change law, focusing on the three legally binding agreements—the UNFCCC (chapter 5), the Kyoto Protocol (chapter 6) and the Paris Agreement (chapter 7)—as well as tackling non-UN climate change law (chapters 8 and 9) and the intersections between climate change law and other spheres of international law. To lead in to the UNFCCC-based legal mechanisms, the authors also cover the evolution of the regime (chapter 4), and explain fundamental principles of international environmental law (chapter 2) and the law of treaties (chapter 3).
Without a need to go into detail—for it is exactly the details that make this book so fascinating—the analysis of the three binding agreements is structured along the same lines: the authors go through each agreement based on the structure of its text, meaning they present and analyse the textual content of the instrument from the preamble to the last paragraph. However, they do not merely present, but contextualise each provision and explain its origins, relevance, specialty and scope. What comes particularly to the fore throughout the book is the matter of language in the negotiation process of the various agreements. Language, it becomes abundantly clear, corresponds—or doesn't—to the different political positions of the negotiating parties or negotiating blocs. This is, of course, not surprising but it is important to understand that in the context of the UNFCCC and its related agreements, the language to be found is of a compromise, reflecting the important skills of the drafters. One example is presented on page 93, which explains the ambit of UNFCCC article 3.4.: ‘The Parties have a right to, and should, promote sustainable development.’ The authors show how the original proposal, ‘The parties have a right to, and should promote, sustainable development,’ could indicate a right to sustainable development, which was opposed by the United States. Merely through the moving of the second comma it was stipulated that states have a ‘right to promote’ and not a ‘right to’ sustainable development.
But apart from that, it rises clearly to the fore how the negotiations of the various provisions, for example for the Kyoto Protocol, essentially resulted in provisions of great compromise, despite the Protocol being a top-down instrument that sets specific targets for the Contracting Parties without them setting their own goals, which would then change in the 2015 Paris Agreement. While this may be the case, the interplay between language and legal weight is a notable element here. The authors point out, for instance, that although provisions may be framed in mandatory terms (‘shall’), depending on the other elements of the respective provision, the legal impact may be limited (for instance as regards the notion of ‘demonstrable progress’ by 2005, which is left undefined) (p. 177). In fact, the authors point to the ‘importance placed on language in the UN climate process and the difficulties of resolving disagreements definitely’ (p. 222).
The legal character of a provision is an issue the authors discuss in broader terms in the Introduction (chapter 1). In their introduction to the Paris Agreement they recapitulate this, which, in this reviewer's opinion, is essential for the understanding of international agreements in general (e.g. Koremenos, Reference Koremenos2016). It is thus that the legal character of a provision depends on the location of the provision in the instruments, who it addresses, its normative content, its language and precision, and ‘what institutional mechanisms exist for transparency, accountability, and compliance’ (p. 213). Bearing these elements in mind, especially for the Paris Agreement, the authors convincingly show there is a mixture of hard law provisions, coupled with soft law and merely descriptive, contextual—non-law—elements. Once again, the mixture of these elements is a result of the 4-year negotiations of the Agreement and the final outcome a compromise agreement that bears considerable weight internationally. After all, the Paris Agreement has currently 160 Parties (a more detailed analysis of the agreement is provided in Klein et al., Reference Klein, Carazo, Doelle, Bulmer and Higham2017).
While the major part of the book is dedicated to international law (the law between states), chapter 8 fleshes out the importance of the polycentric governance approach to climate change. The authors thus present a brief glimpse into the complexity of effectively curbing emissions on a national, regional and local basis. Moreover, apart from the United Nations, there are other international bodies that have policies and mechanisms in place that are pivotal in cutting emissions. Since the announced withdrawal of the United States from the Paris Agreement under the Trump administration, these non-UN bodies and the lower levels of governance become increasingly important.
The last chapter shows the impact of climate change on three crucially important areas of international law: human rights, migration and trade. The chapter thus highlights the multifaceted nature of climate change and its penetration into spheres of governance other than environmental governance. The authors show how the international legal system pertaining to these three areas is severely impacted and in need of responding to the changes in the global climate. While academically certainly very rewarding, this once again highlights the seriousness of climate change and its impacts on the world's societies.
International climate change law is an impressive book. Although it is without doubt an academic volume, at times I felt it was written more in a textbook style. Two reasons underline this: (1) not every piece of information is provided with a source; and (2) following from this is the ‘Selected Biography’ at the end of every chapter. However, in no way is this to be seen as a point of criticism—much to the contrary. Given the book's easy-to-read style, I would hope that this book also finds its way into the hands of non-academics. I particularly think of politicians, journalists and NGOs for whom this book, with its clear structure, would be an invaluable source of information on what the climate regime actually is. After all, there have been countless articles, statements and commentaries circulating, in written or spoken form, produced by so-called ‘experts’ on international climate change law. The real experts, I dare say, are the authors of this book. This volume is highly recommended for anybody with an interest in climate change and the legal response to it, international law and environmental governance.
