The Challenge of International and Comparative Law in the Context of Climate Justice and Climate Change Law: Post Copenhagen Scenario

By Gisele Ferreira de Araújo

Readers will have contact with a multi-disciplinary approach and an overview of the tools the legal discipline of Comparative Law offers to the climate change debate. The book considers the current gaps in international law by arguing that a Comparative Law analytical framework can homogenise the application of international law in the climate change law context.

• Language: English
• Publisher: AuthorHouse UK
• Release date: Nov 29, 2010
• ISBN: 9781467891608

Gisele Ferreira de Araújo

As a Professor, Scientific Researcher and Legal consultant in International Environmental Law Climate Change, Energy and Agriculture, the author presents an integral and broad view about the climate change current issues and show some new paths to practical solutions. She took part in Copenhagen Climate Change Conference in 2009 and could feel the political and legal barriers for the achievement of a global climate agreement. She has worked as a researcher at British Institute of International and Comparative Law Institute of Advances Studies of University of London. This book is a consolidation of more than 8 years of work as a Visiting Academic and Researcher at University of Oxford (UK), London School of Economics LSE (UK), Stetson University Program (USA) and Frie Universitt Berlin (Germany). The author is also a Post-Doctor at University of Lisbon, UL (Portugal) and a PhD at University of Sao Paulo (BR).

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© 2010 Gisele Ferreira de Araújo. All rights reserved.

No part of this book may be reproduced, stored in a retrieval system, or transmitted by any means without the written permission of the author.

First published by AuthorHouse 11/22/2010

ISBN: 978-1-4567-7014-3 (sc)

ISBN: 978-1-4678-9160-8 (eBook)

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‘Humans are seen as forming part of the universe, whose elements are complementary to one another in an integral whole, but humankind has a special relationship to the other parts of nature, a relationship of utilization and development.’

(Bagader, A. A. et al. (2007) Islamset – A general Introduction to Islam’s Attitude Toward the Universe, Natural Resources and the Relation between Man and Nature Environmental Protection in Islam).

ACKNOWLEDGEMENTS

Some brilliant people helped me to write this book.

Many thanks to Simon Baczkiewicz, Kirsty Schneeberger and Alexandre Strapasson for their contributions and opinions which were invaluable to the writing of this book and to Simon Baczkiewicz for his assistance in preparing this book for publication.

Many thanks to Professor Alejandro Garro from Columbia University and Professor John Cole for their intense incentive and support.

Many thanks to the British Institute of Comparative Law and to the Institute of Advanced Legal Studies, University of London, UK. Thanks to the staff of Bodleian Library from University of Oxford (UK)

Special thanks to F.F. Mastromauro for his friendship and generosity.

PREFACE

Coordinated, multilateral action to address climate change requires a multi-disciplinary approach bringing together the best thinking and practices of a host of academic disciplines. In her book, Prof. Araujo provides an overview of the tools the legal discipline of Comparative Law offers to this debate. She then uses these Comparative Law tools in support of her argument that any truly global response to climate change must entail universally accepted norms of fairness in the allocation of resulting benefits and burdens, not only from a technical or scientific perspective, but from a social, economic and political perspective, as well.

Prof. Araujo’s overview considers the current gaps resulting from the existing international law environment, arguing that a Comparative Law analytical framework can homogenise the application of international law through cross-border harmonization of legislation and other regulatory frameworks. This includes a comparative study of the environmental laws and environmental liability regimes in each of Brazil, India, China, South Africa, the European Union and the United States. From this standpoint, Prof. Araujo considers various linkages between the existing international law framework and emerging multilateral norms regarding climate change to explore potential delivery mechanisms for a more unified conception of sustainable development in the climate change context.

By placing these in the context of existing, emerging and proposed international environmental law mechanisms, Prof. Araujo considers potential elements that might further the migration toward a global low carbon society.

Prof. Araujo’s work adds a Comparative Law voice to the existing debate over new, potential and emerging multilateral norms regarding climate change. In doing so, she does not lose sight of the power of Comparative Law as a tool to bring nations, cultures, and peoples together on the basis of shared values. Comparative Law emerges as a tool, rather than an answer, empowering the reader to consider the multiplicity of ways Comparative Law can resolve a wide range of issues arising from the choices mankind faces in mitigating and adapting to climate change.

Prof. J. Cole

Environmental Change Institute, University of Oxford

FOREWORD

This book started to be written on the eve of the Copenhagen Climate Summit (COP-15) and we make no effort to hide our expectations about the possibility of advancing on a series of yet undefined issues during this global meeting.

The aim of this book is not to present an exhaustive analysis of the legal context for Climate Change, but rather it is to assess the most relevant elements that will give shape to the global scenario, to the global dialogue platform and consequently to a new climate regime which is still being built and is important for effective action in the attainment of sustainable development and environmental justice in a world wide basis. This study draws a picture of some relevant reflections and new initiatives in public policies, regulatory frameworks and courts, especially considering the comparison among the systems, at a moment when great political decisions and significant reforms must be made and the search for new integrated solutions in all sectors are the priorities of the climate agenda, mainly in the international law and economic mechanisms which are so necessary in this gestational phase, in order to advance forward to a low carbon society that can dialogue and act on a harmonic basis.

To define common patterns of climate and energy is to define new patterns of development and the great effort in the following years that will need to be made to make the countries establish and honour their positions, their real roles in this new and necessary scenery in the name of the planet preservation and sustainability.

Gisele Ferreira de Araújo

‘The contemporary relevance of the comparative law method lies in its potential to facilitate and understanding of the differences between the old world order and the new. However, the enduring value of the comparative law method must lie not merely in its providing a window to the world’s legal systems, or in its intellectual merit or in its analysis of substantive doctrines at the international and domestic level. Surely, what comparative law can do is to enable us to look beyond our narrow parochial interests and illuminate our understanding of legal rules and concepts, to remind us that, despite differences in culture, history, law and language, we are all part of the larger community of manking.’ (De Cruz, Peter. (2007) Comparative Law in a changing world, Third Edition, Routledge-Cavendish Oxon, p. 521).

Comparative law may have been the hobby of yesterday but it destined to become the science of tomorrow. We must welcome, rather than fear its influence. (Lord Gof Chieveley, 1997,The Future of the Common Law. International & Comparative Law Quarterly, 46: 748. Cambridge University Press)

In the words of Jerome (On Getting on in the World, 1889):

We are so bound together that no man can labour for himself alone. Each blow he strikes on his own behalf helps to mould the universe. (De Cruz, Peter. (2007) Comparative Law in a changing world, Third Edition, Routledge-Cavendish Oxon, p. 522).

Contents

ACKNOWLEDGEMENTS

PREFACE

FOREWORD

INTRODUCTION

CHAPTER 1

COMPARATIVE LAW IN CLIMATE CHANGE CONTEXT

1. CONCEPTUAL ELEMENTS AND HISTORICAL ASPECTS

2. THE MODERN COMPARATIVE LAW FOR 21ST CENTURY –

ADDRESSING CURRENT ISSUES

3. THE NEW ORDER AND THE GLOBALIZED VIEW TOWARD COMPARATIVE LAW

4. THE IMPORTANT ROLE OF COMPARATIVE LAW IN CLIMATE CHANGE CONTEXT

CHAPTER 2

SUSTAINABILITY AND INTERNATIONAL LAW

1. THE ROLE OF NEW INTERNATIONAL LAW

IN THE COLLECTIVE GLOBAL PROBLEMS

2. THE CHALLENGE OF DELIVERING SUSTAINABILITY IN THE INTERNATIONAL ORDER - DEFINING A NEW MODEL OF SUSTAINABLE DEVELOPMENT?

3. INTERGENERATIONAL EQUITY: SAFEGUARDING THE FUTURE FOR GENERATIONS TO COME BY KIRSTY SCHNEEBERGER

4. PROTECTING HUMAN RIGHTS AND ADDRESSING CLIMATE CHANGE

CHAPTER 3

INTERNATIONAL CLIMATE CHANGE REGIME

GOVERNANCE, POLICY AND LEGAL FRAMEWORK

1. THE INTERNATIONAL CLIMATE CHANGE REGIME

2. LEGAL ENVIRONMENTAL SYSTEMS - LEGAL FRAMEWORKS AND POLICIES

3. LEGAL FRAMEWORK OF THE MAIN ACTORS IN CLIMATE CHANGE - THE CLIMATE CHANGE JUSTICE

4. GLOBAL AND LOCAL GOOD CLIMATE GOVERNANCE – REVIEWING PROBLEMS

CHALLENGES FOR LOCAL CLIMATE GOVERNANCE – PERSPECTIVES

CHAPTER 4

STATE LIABILITY FOR CLIMATE CHANGE

1. INTERNATIONAL CONTEXT OF CONVENTIONS

2. COLLECTIVE INTERNATIONAL RESPONSIBILITY

CHAPTER 5

INTERNATIONAL ENVIRONMENTAL COURT

1. INTERNATIONAL ENVIRONMENTAL COURT – GENERAL FEATURES – INSTITUTION, CONSTITUTION AND IMPLEMENTATION.

2. THE INTERNATIONAL COURT AS AN ORGANISM PROVIDING SUSTAINABLE GOVERNANCE AND COMPLIANCE TO INTERNATIONAL ENVIRONMENTAL LAW

3. THE INCORPORATION OF EXPERT JUDGES INTO AN ICE MODEL:

BY SIMON BACZKIEWICZ

CHAPTER 6

THE RIGHTS AND NEW FRAMEWORK FOR A NEW LOW-CARBON SOCIETY - ENERGY SECURITY – HUMAN SECURITY

1. A NEW GREEN ECONOMIC SYSTEM

2. NEW TRENDS OF SUSTAINABILITY STRATEGIES FOR A SOCIETY IN TRANSITION

3. SOCIAL, ECONOMIC AND ENVIRONMENTAL ASPECTS

4. GLOBAL ENVIRONMENTAL CHANGE –

THE BASIC GOALS OF A SUSTAINABLE TRANSITION

5. CLIMATE CHANGE – ADAPTATION AND MITIGATION – PART OF A LOW CARBON SUSTAINABILITY STRATEGY

6. SUSTAINABILITY IN THE ENERGY CONTEXT – ENERGY SECURITY

7. SOCIAL SUSTAINABILITY – HUMAN SECURITY

8. ENVIRONMENTAL LAW FOR SUSTAINABILITY

9. DEVELOPING AN INTERNATIONAL AGENDA FOR CLIMATE, ENERGY, AGRICULTURE AND DEVELOPMENT

10. CONCLUSION

REFERENCES

Endnotes

INTRODUCTION

We cannot reflect on Justice or Comparative Law without speaking of diversity.

Diversity is a necessary characteristic which must be analysed under this perspective, but if considered in itself, it does not suffice to conduct the comparative analysis. The mere fact that diversity exists among legal systems may be the basis, but not the purpose of comparative study. The latter must be able to see the connections lying beyond and behind distinction, by either converging tendencies and/or diverging from them, beyond and behind the disparities, and the reasons for said connections, converging aspects or differences. ¹

In the first place, one must accurately identify what could be considered a human concern shared by two or more societies and to whom these societies would afford solutions that are, in fact, diverse, or that may be diverse, in the same manner as their needs and instruments, institutions and persons, cultures and traditions are diverse. Once a shared concern does exist and such concern transcends national borders, then connections, tendencies and reasons for converging and diverging aspects will also inevitably exist, and will arise should they be submitted to an entire comparative inquiry.

This study is aimed at reflecting on diversity; on how the connections between different legal systems may provide society with the relevant solutions to most of the current issues in the context of solutions obtained in the major legal systems in different societies and cultures. The international interchange of legal issues leads us to a more comprehensive understanding of Culture.

The purpose of our investigation is to know what role is to be played by comparative law, what connections are established with international environmental law and climate change law and how to exercise an effective role towards applying and enforcing those legal solutions found in order to manage the social-environmental and climate challenges within a context of environmental justice. Approximately forty years after the Stockholm Declaration, we still lack the suitable legal and institutional mechanisms effective enough to face the cross-bordering environmental issues.

Unfortunately, our view of the present situation suggests that no structured articulation between the public and private sectors is yet in place, nor is there a clear demonstration of political will towards making decisions that provide us with the tools to conduct the work.

The extraordinary changes verified in recent years should certainly increase the odds of making changes in the methods of preparation of new regulatory landmarks in tune with a new approach to environmental justice.

An unbalanced environment becomes an increasingly serious concern. If one day we needed nature to provide a stable basis to the law, we are now witnessing a tragic inversion, where human beings must use the law to save a nature in danger of death.²

One of the major challenges faced by international law today is the need to harmonize distinct rules aimed at protecting the environment and to reconcile the environmental laws with those laws governing international commerce, finances, human rights, intellectual property and other sectors. Another challenge is to put together different levels of rules found in developed countries and developing countries that face different economic, social and environmental realities. ³

Another aspect that deserves examination is the institutional vacuum found in international environmental law. The methods and techniques available today which can be used to build up new international legal instruments aimed at providing a solution for global environmental issues are unable to face the challenge successfully. The United Nations’ institutional mechanisms are unable to tackle present concerns. In this respect, comparative law may function as a strategic instrument. It is time we developed innovative tools which lead us to prepare new regulatory landmarks in different manners, in order that they correspond to the new paradigms of environmental justice and climate change.

CHAPTER 1

COMPARATIVE LAW IN CLIMATE CHANGE CONTEXT

1. CONCEPTUAL ELEMENTS AND HISTORICAL ASPECTS

The phrase comparative law was first employed in the nineteenth century and although it is, primarily, a method of study, it has acquired a sufficient number of principles that suggest the transformation of this branch of social science into a law in itself. However, comparative law presents no central content, such as the concepts of contractual law or criminal law, which are present in the English legal system. Therefore, once the key concepts such as the sources of law and the legal families have been understood, several topics exist that are afforded a comparative analysis. The Comparative law method, however, is not a modern enterprise.

Several reasons justify a new appraisal of comparative law as a methodological and social-legal construction in the new millennium.

Other works on comparative law typically assume that there are three or more groups of legal families – the civil law, the common law and the socialist legal systems. However, with regard to the socialist systems, there is no longer a requirement to take them into consideration in