Warming to Crisis: The Climate Change Law of Unintended Opportunity

Abstract

Global warming is perhaps the ultimate crisis for humanity. But is it a crisis for international law? How has crisis framing and rhetoric influenced the development of international climate change law? Elements of a ‘crisis model’ can be identified in international responses to climate change, but they have transcended it and are evolving in much more complex and textured ways. On the one hand, the continuous pressure for urgent and exceptional action at the multilateral level has led to acrimony between states, indifference and denial among important constituencies, and ultimately to weak arrangements within conventional intergovernmental models. This has produced an impression of constant failure, which in itself poses a challenge to the normative capacity of traditional international law-making. On the other hand, crisis framing has been a catalyst for developments in international law in unintended ways. It has legitimated ‘bottom-up’ approaches and sub-global and unilateral action, as well as localized legal responses. It has led to sophisticated yet plausible reconciliations between climate concerns and international trade. It has promoted reconsiderations of hard policy choices, such as between mitigation and adaptation. International law’s climate change agenda has broadened, not narrowed, and it has shown a considerable capacity to innovate and develop, presenting new opportunities for international law’s functions and modalities.