Legal Aspect of Confronting Climate Change

Climate change is considered to be one of the most threatening issues of twenty- first century. It leads to many environmental impacts beyond temperature increases, including melting glaciers and reduced snow cover, extreme weather events, including droughts and flooding. Climate impacts can be difficult to observe in part because changes occur slowly over many years. Climate change and its accompanying environmental degradation are perceived to be a threat that can have incalculable consequences on the international community. Globally, scientists expect changing temperatures to have such consequences as disruption of ecosystems, more frequent and damaging storms accompanied by land slides and flooding; extended water shortages as a result of reduced snow pack; increased likelihood of wildfires; and disturbance of wildlife habitats and agricultural activities.

Furthermore, it might possibly implicate national security issues by causing instability in different countries (impairing access to food and water, damaging infrastructure, spreading disease, uprooting and displacing large numbers of people). Based in that reasoning, such issue has become policy area concerns for many governments across the globe and international community itself. The actions to confront the climate change stipulated in various international documents at both legally binding, and at recommendatory nature (taken hundreds of decisions at the annual conferences of the parties to the Framework Convention on Climate Change, the Kyoto Protocol and the Paris Agreement). The Intergovernmental Panel on Climate Change findings confirms that human activities are the primary cause of climate change [IPCC Special Report “Global Warming of 1.5°C”, 2014].

As countermeasures to change climate in the following steps are taken: financial and other measures to counter this process and adaptation to its consequences; to limit harmful effects;  measures to promote and promote the implementation and compliance with relevant standards at the national level. In order to strengthen mechanism for combating climate change, appropriate policy and legal measures are taken as by making decisions on Conferences of the Parties to the UNFCCC and its Protocols, and outside the UN. Moreover, many climate-saving measures are being announced as part of other international environmental agreements and other branches of international law.

From a legal point of view, this problem can be viewed both at the regional level in the state, and at the national level, and at the level of groups of states, such as the Scandinavian countries, and within the mainland, and, of course, at the global level. At each of these levels, legal regulation will vary.

Within the framework of national law, criminal, civil and administrative law is also related to this issue. Administrative law, in particular, pays great attention to technical regulation, since in case of violation of technical regulations, people and the entire planet are affected. Technical regulation is a global technical interoperability issue, including emissions and waste issues. International legal regulation is a very complex and important problem, and both international public law and private international law are involved in its solution. Despite the numerous efforts of the international community, even the entry into force of the Paris Agreement does not save the climate in the long run. In 2017 within The UN Environment Program was A Report has been prepared (hereinafter – the UNEP Report), according to which the world urgently needs to step up steps to further reduce the projected 2030 emissions by 25%, because with the adoption of the Paris Agreement.

International environmental law is still a comparatively new field and it is concerned with the attempt to control pollution and the depletion of natural resources within a framework of sustainable development and covers the topic of climate change. International environmental law does not have a general normative framework, covering its each aspect. Some of the scholars have suggested that the Rio Declaration is able to conduct such a framework function [D. Bodansky, 2001; R. Wolfrum and N. Matz, 2003].  Others proposed the focus on debating and creating the new framework convention [E.B Weiss , 1993].

It has been stated that other branches of international law have an obligatory framework instruments that brings together regional or sectoral instruments under the same normative umbrella in order to provide a certain degree of coherence and coordination. In most of these branches, however, the framework treaties and agreements are codifying already existing customary norms and pre-dated the development of more specific treaties, which were not adopted ex post factum. [C. Voigt, 2018]. The fragmented organization of international law and gradually developing process of regime creation are inevitably leading to the such situation when some environmental issues are addressed directly, while others ones are not, which depends on whether certain initiatives, environmental disasters mobilized States into negotiations or scientific findings.

As it was mentioned in previous paragraph the fragmentation of international law and the process of creation of environmental “umbrella” framework inevitably lead to the situation when particular issues are directly addressed meanwhile others are not, what further provokes factual, technical and (unmentionable) normative gaps. Current research is seeking to figure out if this fragmentation and nature of “gaps” of international law negatively influences the process of confronting climate change and its governance. The purpose of current research might be formulated as discovering how the development of international environmental law hampers the process of confronting climate change. And the research question for this paper for further thesis might be stated as: How could the development of international legal law hamper the confronting climate change?

It has already been stated that the role of law and regulation is growing and expanding radically and what is more important “in this rapidly changing context there is a need for more empirical evidence about what types of law and regulation work, and what do not, how mechanisms of regulatory control could be improved and adapted, and generally, the degree to which the use of law can contribute to the overall well-being of society” [Nuffield 2004: 2]. Empirical legal research (ELS) is described as necessary approach not only from a theoretical perspective, but it’s also essential for the practical development of laws, regulation and legal frameworks.

I’ll use a qualitative and interdisciplinary approach to my research. This is essential, because the intersection of the law and politics helps to understand this problem. I’m planning to look at international institutions and law as well as the political discourses behind them. My qualitative analysis is interdisciplinary because I study law and I will engage with legal doctrinal analysis as well as legal and political theory. I would like to rely on such method as document analysis, which is developed by director of the Center for Service Learning at Western Carolina University (Cullowhee, North Carolina, USA), Glenn A. Bowen.

Since my research is considered with governance and regulation, which are conducted on basis of international environmental law, it drew heavily on theoretical prism concerning the role of international environmental law in confronting climate change and its place in the development of this process. This research would use regulation theory is the theoretical basis. First, the scholar, who is worth mentioning it in terms of environmental issues is Garrett Hardin, whose research article is mainly focuses on how degradation of the environment results on the tendency of humanity overexploitation of natural resources and “held in common”[G.Harnin, 1968]- and it’s what the author calls “the tragedy of the commons”. Moreover, Hardin’s research tells us about what are effective and not effective methods and strategies of preventing and avoiding prospect tragic consequences.

The professor Georgetown University of law, John Hasnas, in his essay “Two theories of environmental regulation”, made and extrapolation from Hardin’s article in order to come up with conclusions towards environmental regulation. Basically, the author argues that there are two distinct forms of environmental regulation, and that “proper public policy analysis requires a comparative assessment of which constitutes the more effective means of combating any particular environmental problem” [J. Hasnas, 2009]. Comparative assessments itself suggests common law regulation to be the superior alternative pose a difficult practical challenge. Outcome for the superior can be achieved only if politicians can be induced to refrain from preempting it through legislation.

The regulation theory is also become a concern research interest of Australian National University, including Cameron Halley, who provides an overview of the recent new environmental governance trends and emphasize recent changes and shifts in environmental governance and regulation in his research “Environmental regulation and governance”. The author also highlights recent discussion and unresolved challenges for governing the environment, which is the most crucial part for my research.

According to the theory environmental issues, such as climate change will likely affect future generations, and the process of dealing and governing environmental problems is expected to be under the way and it is still far from being complete. In many ways, both domestic and international environmental governance remain conducting some sort of a continuing experiment, which is defined as keeping what has been working since it was established and attempting to find new ways to do things better when they don’t directly address to the problem and, as a result, don’t bring any solutions for problems [Cameron Halley, 2017].

This study is to be based on a huge number of materials, including international legal acts, both – legally binding and recommendatory, political and legal research studies, and also I’ll briefly touch upon environmental science literature just to explain why studying climate change and its consequences matter and should be studied from not only environmental perspective.

The first part of the literature, which I want to emphasize, is the literature, which describes climate change as global issue. Current part explains why this topic is relevant and should be seen through legal and political sciences’ prism and taken in the focus of interdisciplinary research. Mainly, I would like to rely on IPCC reports about the causes of climate changes [IPCC Special Report “Global Warming of 1.5°C”, 2014], where it is officially stated that the climate change is a byproduct of human activity and energy use as well [“CLIMATE CHANGE AND NUCLEAR POWER 2018. IAEA.”].

The amount of literature on national climate policy-making has radically increased over recent three decades. A crucial part of research is looking forward to tracking and explaining development in climate action over time across multiple jurisdictions [Rating countries – Climate Action Tracker; N. K., Hagemann, M., Höhne, N., & Upadhyaya, P., 2013; Developments in national climate change mitigation legislation and strategy. Climate Policy;  Climate change laws of the world – database. Grantham Research Institute on climate change and the environment; Bodansky, Daniel. “The History of the Global Climate Change Regime”, 2001; Iacobuta, Gabriela, Navroz K. Dubash, Prabhat Upadhyaya, Mekdelawit Deribe, and Niklas Höhne. “National Climate Change Mitigation Legislation, Strategy and Targets: A Global Update”., 2018].

In legal literature on environmental law, the authors pay much attention to public administration. Management in the environmental field has both common features and specific features inherent in management in this area. Thus, management as a whole is a purposeful ordering effect realized in relations between the subject and the object and carried out directly by the subject of management. From this it is seen that two parties are involved in management: the subject of management, which affects the object, and the controlled object, which is affected by the subject.

Government entities, local governments, organizations (enterprises, institutions, public associations, etc.) act as subjects of management Also, legal part of literature considers how far the climate change regime is an exemplar of international environmental law as well as public international law [Duncun Franch, Lavanya Rajamani “Climate Change and International Environmental Law: Musings on a Journey to Somewhere”, 2013; Margaret Young “Trading Fish, Saving Fish. The Interaction between Regimes in International Law”, 2011; Bodansky Daniel, Brunnée Jutta, Hey Ellen “International Environmental Law: Mapping the Field”, 2008; ].

The third significant part is mainly concerned with the notion and the nature of ‘gaps’ in the context of the draft Global Pact, the Resolution and more generally in International environmental law, and explores whether the concept of ‘gaps’ has meaningful value and whether such gaps are factual, technical or normative in nature [Duncun Franch, Lavanya Rajamani, “Climate Change and International Environmental Law: Musings on a Journey to Somewhere”, 2019]. Moreover it’s stated that the Global Pact for the Environment has the potential to be a milestone in the rapidly developing relationship of human rights and the environment

Expected research results and findings

The research is concerned with phenomenon, nature and notion of gaps in the general context of international; environmental law, and its influence on the process of confronting climate change. The results, which this research is seeking to achieve, are fist of all to explore if the concept of gaps in international environmental law (ELS) has a significant value and if these gaps are “factual, technical or normative in nature” [], then the

While we believe an analysis of the strengths and weaknesses of international environmental law should be welcomed, we are not entirely convinced, however, that a gap analysis in the form and fashion currently proposed is the most effective or useful way to go about this.

It is clear that all around the world, country’s energy systems are undergoing a period of transformative change as countries are looking for to finding ways to decarbonize the production of energy while maintaining at least some economic growth. This transformation is necessary and urgently needed if we are to address anthropogenic, that is man-made, climate change and its consequences. The world needs to swiftly transition away from intensive emissions fossil fuel path, towards a clean low carbon energy of the future. The biggest challenge and the most obvious one, which efforts to confront the climate change and the consequences of the climate change affect the development of socio-economic problems. It provokes deeper differentiation between developed and developing countries.

For instance, the interests of the least developed countries, small island states, countries with areas prone to natural disasters, and, in general, the problem of combating climate change is all more viewed in the light of political interests [Naghmeh Nasiritousi and Bäckstrand Karin, 2017]. On the one hand, the developed states insist that the regime should deal with emissions from all large economies, both developed and developing countries. On the other hand, developing countries continue to argue that they are historically not responsible for climate change, they have less ability to respond to this problem, and therefore they should not take on international emission reduction commitments.

For instance, the Paris Agreement has not only environmental objectives, but it also has political objectives of pressure on developing countries’ economies, reflecting general framework approaches and guidelines that have not been developed in detail, especially regarding the regulation of the system for monitoring compliance by members of the treaty. Moreover, confronting climate change often rests on the lack of funds and lack of access to new, ‘green’ technologies [T. Hale, 2016]. To top it off, developing countries perceive climate change as part of a larger picture of historical and economic injustice, demanding that industrialized nations bear the brunt of the fight against change climate. In turn, many developed nations insist on the participation of developing countries to tackle practical climate change issues. This is the first and the most obvious problem, which is provoked by development of international environmental law. This process doesn’t take into account the special traits of particular region and as a result faces the resistance from interest groups.