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Conceiving the rationale for international climate law

Abstract

A rationale is a reasoned narrative used to justify a norm or set of norms; in turn, it determines the expectations that one holds from the law and provides a framework in which complementary norms are bargained. This article proposes a reflection on the elusive rationale for international climate law. Its first, analytical claim is that there is currently no consensus on such a rationale—an absence likely to impede climate negotiations. References to “equity,” “common but differentiated responsibilities” and “respective capabilities” in existing climate law provide insufficient guidance to ongoing negotiations, reflecting an agreement to disagree rather than a common vision. The construction of a rationale is prevented by protracted disputes regarding the ethical grounds relevant to climate law and by the ambivalence of national interests, which are essentially social constructs. A second, normative claim of this article is that the rationale for climate law should be construed as a hybrid narrative reconciling moral aspirations with pragmatic constraints. Thus, it is submitted that the concept of complex interdependence could be applied to climate change to emphasize existing national interests in fostering global sustainable development. Although important debates remain, complex interdependence provides essential guidance by calling states to take moral arguments into account, in their own interest—when such arguments are widely accepted by civil societies—in order to avoid human destitution and resentment and to preclude the possibility of disastrous consequences on international peace and security.

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Notes

  1. 1.

    Thus, the “object and purpose” of a treaty provide support for interpretation of a norm (1969 Vienna Convention on the Law of Treaties, art. 31.1).

  2. 2.

    From the “inherent dignity and … the equal and inalienable rights of all members of the human family” (1948 Universal Declaration of Human Rights, 1st recital) to the “interdependence of all the members of the world community” (1974 Declaration on the Establishment of a New International Economic Order, ¶3).

  3. 3.

    See for instance EU Comission (2001), 2, describing the EU emission trading scheme as “an environmental policy instrument to lower the costs of reducing greenhouse gas emissions.”

  4. 4.

    Such a consensus is instrumental to the application of international law generally, absent enforcement mechanisms. While states are already bound by certain laws, including the law on state responsibility and the no harm principle, even the application of such laws remains, in practical terms, subject to the goodwill of the states under specific obligations (e.g. responsible states).

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Acknowledgments

Insightful comments were provided by the participants to a NUS Law doctoral seminar and to the Como workshop on Multi-disciplinary Perspectives on Climate Ethics, and by four anonymous reviewers.

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Correspondence to Benoît Mayer.

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This article is part of a special issue on “Multidisciplinary perspectives on climate ethics” with guest editors Marco Grasso and Ezra M. Markowitz

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Mayer, B. Conceiving the rationale for international climate law. Climatic Change 130, 371–382 (2015). https://doi.org/10.1007/s10584-014-1271-4

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Keywords

  • National Interest
  • Ethical Argument
  • Human Security
  • Complex Interdependence
  • Climate Negotiation