Between the Devil and the Deep Blue Sea: Enhancing Flexibility in International Climate Change Law




• Periodic assessment of treaty obligations

• Advice to COP on basis of scientific assessments

• Production of regular scientific assessments

• Guidance for SBSTA

• Identification of research priorities

• Production of specific assessment at the request of SBSTA (and self-initiated)

• Advice requests to SBSTA

• Formulate requests to scientific bodies

• Identification of research priorities

• Consideration of SBSTA advice

• Cooperation with other organizations

• Cooperation with other organizations

• Cooperation with other organizations

Adapted from Lohan 2006

A positive perspective on this science-policy interface would suggest that ‘the institutional structure drawn upon by the UNFCCC optimizes the input of scientific information into the decision making process, as long as the IPCC works according to its current procedures’.28 Viewed more critically, however, it can be pointed out that this structure does not guarantee that the scientific information will actually be incorporated in decisions. The process of drafting the Summary for Policymakers accompanying each IPCC report has become heavily politicised, with governments seeking to reflect their political positions in the document.29 Peter Haas therefore concludes that the way in which the IPCC provides scientific information to the UNFCCC does not result in usable knowledge for the Parties and is not reflected in the climate agreements.30 This is visible, in particular, with respect to aggregate mitigation efforts, with the gap between pledged emission reductions and the internationally agreed goal31 to keep temperature increases below 2 °C relative to pre-industrial times still widening.32 Moreover, the mere observation that scientific information is taken up properly in the policy process does not say anything about the speediness with which this occurs. This is important especially in the case of the climate regime, as some changing insights into mitigation options as well as climate impacts call for swift policy responses.

10.2.3 Review and Amendment

An important way to adjust a treaty regime to exogenous developments over time is by providing for the review of the original treaties and including possibilities for amending them when deemed necessary.

Both climate treaties include various provisions for review. In a general review clause, the UNFCCC instructs the COP to ‘[p]eriodically examine the obligations of the Parties and the institutional arrangements under the Convention, in the light of the objective of the Convention, the experience gained in its implementation and the evolution of scientific and technological knowledge’.33 It further provides for a review of the adequacy of some of its core commitments by its first session, drawing on ‘best available scientific information and assessment of climate change and its impacts, as well as relevant technical, social and economic information’.34 This review led to the ‘Berlin Mandate’ at the first COP in 1995, which in turn launched the negotiations for the Kyoto Protocol.35 While the provision could thus be said to underscore the dynamic character of the climate regime, a second review never followed. Finally, the Convention provides for a review of its Annexes by the end of 1998.36 While this provision was hardly used,37 its framing offers a potential avenue to reflect changes in socio-economic conditions over time.38

The Kyoto Protocol also offers several opportunities for reviewing the adequacy of its commitments. It contains a general clause providing for a periodical review by the COP similar to that of the UNFCCC.39 More specifically, for Annex B Parties (i.e., the developed countries that have signed up to specific emission limitation or reduction targets) Article 3(9) Kyoto Protocol suggests that the consideration of future commitments needs to start seven years before the end of the first commitment period (2008–2012).40 The Protocol also provides for a separate periodical review in light of the latest scientific information. Unlike the one-off Article 3(9) Kyoto Protocol review, however, this review covers the commitments of all Parties (including developing countries), and is not limited to the mitigation-oriented commitments.41 Although two reviews were held in this context, these reviews were not to ‘lead to new commitments for any Party’.42 Moreover, the second review ended without a clear outcome or a plan for follow-up in 2008.43

Amendments to the climate treaties may be adopted without any limitations as to their substance.44 Both the UNFCCC and Kyoto Protocol indicate that amendments should be agreed upon by consensus or, if this turns out to be infeasible, a three-fourth majority.45 While the majority voting procedure in theory enhances flexibility, as it could allow for overruling obstructionist states, in practice ‘international regimes are heavily dependent on voluntary action on the part of member states when it comes to matters of implementation’, meaning that ‘it is important to avoid alienating key members via the use of decision-making procedures that seem coercive’.46 Nevertheless, as Farhana Yamin and Joanna Depledge point out, ‘[a]lthough voting rarely takes place in [multilateral environmental agreements], the possibility of voting ensures that no Party, or small group of Parties can veto evolution of the regime in the face of widespread agreement’.47 Should amendments be adopted, they are binding only to those parties that have accepted them, creating a potentially complex network of legal relations between Parties.48

Another way to adapt is to make changes in the Annexes to the climate agreements, and hence change the commitments only for certain Parties. For the UNFCCC, the adoption of changes to the Annexes follows the same procedure as an amendment.49 However, as the entry into force requirements for changing the Annexes are more relaxed, such changes are ‘a more expedient way of incorporating material of an essentially factual nature into the regime than is possible through the use of amendments’.50 Changing the Annexes to the Kyoto Protocol is more difficult, given the fact that they comprise the core commitments of individual Parties, and define the scope of the agreement by listing the greenhouse gases covered. More specifically, the Protocol states that ‘any amendment to Annex B shall be adopted only with the written consent of the Party concerned’.51

Up to 2009, proposed amendments to the climate treaties were few and far between. Proposed amendments by Turkey and Kazakhstan to change the Annexes to the UNFCCC met with resistance.52 Belarus’ proposal to amend Annex B of the Kyoto Protocol to allow it to assume emission reduction obligations was adopted in 2006, but is unlikely to enter into force due to a lack of ratifications.53 The number of proposals increased sharply in 2009. The reasons for this related to the heightened expectations that at the Copenhagen climate summit at the end of 2009 a new international agreement would be adopted, combined with the provision in the climate treaties that an amendment needs to be sent to Parties at least six months in advance of a meeting before it can be adopted.54 Whereas several developing countries sought to act upon the mandate under Article 3(9) Kyoto Protocol by proposing amendments including specific new commitments for Annex B Parties,55 some developed countries instead tabled amendments putting forward an entirely different legal architecture from that of the Protocol.56 Parties in Copenhagen, as has been extensively discussed elsewhere,57 did neither adopt any of these amendments nor any other legally binding agreement. Three years later, however, Parties in Doha ultimately adopted an amendment—yet to enter into force—in response to Article 3(9) Kyoto Protocol, inscribing new targets for a second commitment period (from 2013 to 2020) for the European Union, its Member States and a few other countries.58 The long and winded inception period of this amendment can be considered a reflection of the challenges faced when Parties to the climate treaties need to make substantive changes that touch the core of the climate regime—i.e., who needs to do what by when.

10.2.4 Entry into Force, Reservations and Withdrawal

Provisions on entry into force (of both treaties and amendments), as well as reservations and withdrawals by individual Parties offer another opportunity to enhance flexibility in the design of a legal regime. Such provisions set important parameters for Parties’ legal obligations by specifying when such obligations begin to apply, whether any unilateral opt-outs are allowed and whether and how a Party can cease to be bound.

The entry into force requirements of the UNFCCC were rather lenient,59 ensuring a rapid entry into force of the framework treaty less than two years after its adoption. The Kyoto Protocol introduced more challenging hurdles. Not only did it require at least 55 Parties to ratify, it also stipulated that these Parties should include Annex I Parties responsible for at least 55 percent of the total carbon dioxide emissions in 1990. In terms of flexibility, this provision created a ‘handicap’.60 While the provision sought to avoid a situation where the fate of the Protocol’s entry into force depended entirely on the United States,61 it led to several compromises on the part of the European Union to ensure the participation of other Annex I Parties such as Japan, Canada and, notably, the Russian Federation. These compromises are primarily reflected in rules on the use of carbon sinks (see further Sect. 10.2.6), and while they arguably enhanced the regime’s flexibility (in terms of methods for accounting for emissions as well as implementing commitments), they also jeopardized the environmental integrity of the Kyoto targets by creating new loopholes.62

Like most other multilateral environmental agreements, the climate treaties state clearly that no reservations are allowed.63 While this arguably limits the flexibility of the treaties, it also prevents the emergence of a complex web of bilateral legal relationships, and ensures that the fragile compromises reached in the treaties are not unravelled at a later stage.64 Flexibility, in short, has to be built into the treaty itself.

The provisions on withdrawal in both climate treaties arguably enhance flexibility, as they allow for a Party to withdraw provided a prior notification has been submitted.65 Withdrawal clauses can be seen as a form of ‘insurance’, where Parties seek to minimise the risks of potentially high compliance costs of a treaty by allowing for unilateral treaty exit.66 Yet, the consequence of having a withdrawal provision (specifically, one that does not pose any high barriers) is that it may in fact be used, with potentially detrimental consequences for future international cooperation. While it was perhaps expected that the need to keep up a good international reputation would deter countries from exiting, Canada notoriously made use of the provision in 2011, when it submitted its notification of withdrawal.67 Canada was well off track to meet its Kyoto targets, but rather than being found to be in non-compliance, it chose to exit. The risks of such a precedent are highlighted by Helfer, who points out ‘that states will invoke exit clauses opportunistically (or credibly threaten to do so) whenever economic, political, or other pressures make compliance costly or inconvenient’ and that ‘states that would prefer to cooperate but fear that their treaty partners may quit the agreement have less incentive to invest in treaty compliance’.68 Although neither scenario described by Helfer has materialized yet in the climate regime, there is a possibility that they will in the future, particularly if states cannot avail of other flexibility mechanisms.

10.2.5 Differentiation

As an elaboration of the principle of ‘common but differentiated responsibilities and respective capabilities’,69 the UNFCCC divides its Parties into two major blocks, emerging from the initial classification of Parties into Annex I (including a richer Annex II) and the default category of non-Annex I countries. The same approach is reinforced in the Kyoto Protocol, which focuses on Annex B and non-Annex B countries. Both treaties contain commitments applying to all countries, but add specific commitments for Annex I/B countries. Notably, non-Annex B countries do not have any emission reduction commitments under the Kyoto Protocol.

While the division into two Annexes arguably simplifies the negotiation process, it can be criticized for not taking into account changing circumstances in countries. Developed countries, in particular, have argued for abandoning the distinctions introduced by the Annexes. Such calls have met with fierce resistance from several developing countries, particularly large emerging economies such as China and India, which have insisted that the ‘firewall’ of the Annexes needs to be maintained. Therefore, since ‘the addition and deletion of names of countries from Annex I is closely related to the broader issues raised by the evolution of mitigation commitments of non-Annex I Parties’,70 any proposed change to the Annexes has been a sensitive issue.

The diverging views between developed and developing countries came sharply into focus during the negotiations on a follow-up agreement to the Kyoto Protocol in the mid-2000s. A first departure from the ‘firewall’ approach to differentiation was agreed in the 2007 Bali Action Plan, which called for ‘nationally appropriate mitigation commitments or actions’ by developed country Parties (rather than referring to Annex I/B countries) and ‘nationally appropriate mitigation actions’ for developing country Parties (rather than referring to non-Annex I/B countries).71 This trend continued in subsequent COPs in Copenhagen, Cancún and Durban. Notably, the decision launching the Durban Platform on a future climate agreement specifies that such an agreement will be ‘applicable to all Parties’.72

More importantly, however, further differentiation is already quite common in the climate regime.73 The UNFCCC refers, for instance, to the ‘special situations of the least developed countries’;74 to ‘economies that are vulnerable to the adverse effects of the implementation of measures to respond to climate change’;75 to countries ‘undergoing the process of transition to a market economy’;76 and to the special needs and circumstances of a range of different countries, including ‘small island countries’, ‘countries with low-lying coastal areas’, fossil-fuel producing countries, etc.77 Differentiation can also be observed in specific issue areas. With respect to the CDM, initiatives have sought to promote the ‘equitable distribution’ of CDM projects, for instance through capacity-building initiatives in sub-Saharan Africa78 and a loan scheme for countries with less than 10 projects.79 Likewise, over the years a differentiated approach to climate change finance has been followed. The Cancún Agreements, for example, stipulate that ‘funding for adaptation will be prioritized for the most vulnerable developing countries, such as the least developed countries, small island developing States and Africa.’80

The principle of common but differentiated responsibilities and respective capabilities provides a legal argument in favour of differentiation between Parties with different contributions to the climate problem and different capacities to reduce emissions. Essentially, the principle offers a basis for treating countries differently if national circumstances vary, and thereby allows for enhancing flexibility in the climate regime.

10.2.6 Implementation

The extent to which a treaty prescribes a certain conduct is another important determinant for its flexibility. Given its nature as a framework treaty, it is unsurprising that the conduct prescribed in the UNFCCC is rather broadly formulated, with the important exception of provisions on monitoring and reporting. For instance, the most concrete elaboration of an emissions goal is for all Parties, individually and/or jointly, to return to their 1990 emissions level.81 Moreover, the treaty stipulates that Annex I Parties are to ‘adopt national policies and take corresponding measures on the mitigation of climate change’,82 without specifying what types of policies and measures would be desirable.

The Kyoto Protocol is more concrete when it comes to emission reduction targets, which are specified for all Annex B Parties. It also adds detail on the means of implementation by including a list of possible policies and measures, but the text of the provision—‘such as’—makes clear that the list is meant to be non-exhaustive.83 The non-mandatory and non-exhaustive nature of the list of policies and measures means that states are in principle free to decide how to reduce their greenhouse gas emissions, leaving them with much discretion in achieving their targets. For instance, countries can opt to reduce emissions by putting in place renewable energy or energy efficiency policies or by adopting policies to enhance the carbon uptake of sinks (e.g., by increasing forested land). Moreover, Parties are given ‘what’ flexibility with respect to the sources of emissions: the Protocol covers a ‘basket’ of greenhouse gases,84 with Parties free to choose which emissions to reduce. This is of significance, as it allows Parties to target emission sources that are not deeply entangled with their economies. The flipside of this approach is that it will inevitably pose challenges in measuring progress, as the equivalence of different types of emission reductions will need to be established before they can be aggregated.

Flexibility in the implementation stage is further enhanced by the introduction of three market-based mechanisms in the Kyoto Protocol. Although some form of flexibility mechanism was already included in the UNFCCC—in the guise of Activities Implemented Jointly85—the idea of market mechanisms in international climate policy was only fully embraced through the Kyoto Protocol. Importantly, the Kyoto mechanisms offer ‘where’ flexibility to achieve cost-effective emission reductions by allowing Parties to reduce emissions outside of their jurisdiction.86 First, through international emissions trading, Annex I Parties can buy or sell emission units representing 1 metric tonne carbon dioxide equivalent from or to other Annex I Parties.87 Second, through the CDM, Annex I Parties may invest in emission reduction projects in non-Annex I countries. The emission reduction credits subsequently generated can be used up to a certain extent to meet the Kyoto targets.88 The third flexibility mechanism, Joint Implementation, follows a similar logic, but is aimed specifically at countries undergoing the transition to a market-based economy (i.e., countries in Central and Eastern Europe).89 The only limitation to this ‘where’ flexibility comes in the form of a vaguely formulated recital that the use of the Kyoto mechanisms ‘shall be supplemental to domestic action and that domestic action shall thus constitute a significant element of the effort made by each Party’.90

Following Kyoto, and with a view to ensuring sufficient participation to allow the Protocol to enter into force (see Sect. 10.2.4), new rules were agreed by Kyoto Parties that provided for even more flexibility, particularly by relaxing rules in the area of carbon sinks.91 In short, it should be clear that the climate treaties leave Parties considerable flexibility regarding the means of implementation.

10.2.7 Compliance

The design of a compliance mechanism can directly affect a Party’s costs of compliance, and therefore provides another avenue for either enhancing or limiting flexibility. Moreover, non-compliance itself can be seen as the ultimate unilateral flexibility mechanism:92 a Party can allow itself room for manoeuvring by not complying with its commitments (although such a strategy may backfire in cases where non-compliance involves sanctions).

Although Parties to the UNFCCC were invited to consider a ‘multilateral consultative process’,93 no compliance mechanism has been established under the Convention. By contrast, the Kyoto Protocol put in place a compliance mechanism that combined the virtues of the two main schools of thought in compliance theory: through the Enforcement Branch of its Compliance Committee, it allows for penalties in case Kyoto Parties do not meet key obligations (reflecting the ‘enforcement’ school in compliance theory); and through its Facilitative Branch, it assists countries to return to compliance (corresponding to the ‘managerial’ school).94 The managerial school, in particular, emphasises how compliance should be viewed as a continuous process requiring ‘compliance management’ rather than one-off findings of non-compliance combined with sanctions,95 highlighting the role of compliance mechanisms in promoting flexibility.

Although the flexibility built into the functioning of the Enforcement Branch is rather limited (it is to ‘determine’ non-compliance and ‘apply’ consequences, such as penalties96), the room for manoeuvring for the Facilitative Branch is greater.97 The mandate of the latter includes

providing advice and facilitation to Parties …, promoting compliance by Parties with their commitments under the Protocol, taking into account the principle of common but differentiated responsibilities and respective capabilities …. It shall also take into account the circumstances pertaining to the questions before it. 98

In line with the notion of compliance management, the Facilitative Branch can enter into a dialogue with Parties that are at risk of non-compliance. However, mainly due to the later-than-expected entry into force of the Protocol, the facilitative function of the Compliance Committee has been under-utilized.99 Nevertheless, this facilitative role has in part been assumed by the expert review teams, which were established by the Kyoto Protocol to review Parties’ reports and submit ‘questions of implementation’.100 Evaluations of the functioning of the compliance system underline that Parties’ national circumstances have been taken into account, but point out that this has been done in an inconsistent fashion.101

10.2.8 Flexibility in the Climate Change Regime: Advances and Limitations

The previous sub-sections have shown that flexibility has been the rule rather than the exception in the design of the United Nations climate change regime. The types of flexibility comprise ‘adaptive’, ‘transformative’ as well as ‘means’ flexibility.

Adaptive flexibility can be observed, for instance, in the withdrawal provision that allowed Canada to exit from Kyoto in 2011, or in the Protocol’s compliance mechanism which allows for a measured response to different cases of non-compliance. Transformative flexibility is clear from the provisions on review and amendment, as well as the system of delegated law-making through the COP, which allows for a response to changing insights and circumstances without seeking recourse to formal re-negotiation processes. Means flexibility is present in the climate treaties through the provisions allowing significant discretion with respect to mitigation policies and measures, as well as through the Kyoto Protocol’s flexibility mechanisms.

These examples show that the designers of the Convention were well aware of the temporal nature of the subject matter. While the UNFCCC establishes an overarching objective and guiding principles for the climate regime, and the Kyoto Protocol sets clear rules for developed countries to reduce their emissions (thus enhancing legal certainty and predictability), the flexibility mechanisms offer Parties (individually and collectively) significant leeway.

Yet notwithstanding the flexibility built into the design of both climate treaties, the discussion has also clearly shown that there are problems with the existing regime when it comes to adapting to changing circumstances in practice. Despite institutional arrangements for the provision of scientific input into the policy-making process and a reference to precaution in the UNFCCC,102 it remains unclear whether the UNFCCC process is able to properly reflect changing scientific insights that stress the importance of rapid and deep emission cuts. An interesting test case in the immediate future in this regard will be to examine whether Parties will acknowledge and embrace scientific findings that to stay below 2 °C with over 75 % certainty, it is necessary to limit cumulative carbon dioxide emissions between 2000 and 2050 to 1000 gigatonnes.103 Although Parties have established a review process from 2013 to 2015 ‘to periodically review the adequacy of the long-term global goal …, in the light of the ultimate objective of the Convention, and overall progress towards achieving it’,104 it remains to be seen whether the longer-term objectives will influence short- to mid-term goals and actions. The experience of the climate regime in terms of setting ambitious and concrete goals does not bode well, and it is perhaps too much to expect a translation of scientific insights into specific emission reduction commitments. As a consequence, it will remain difficult to measure progress toward any long-term objective.

Related to this, the current climate regime is arguably not well-aligned with the structure of the climate change problem. As Oran Young explains,

[t]his misfit is, first and foremost, a function of the fact that the relevant biophysical systems are dynamic and prone to changes that are nonlinear, irreversible, and surprising, whereas the regime is sluggish and unable to respond in a nimble fashion to such changes in the climate system.105

The climate regime is marked by an incremental approach, with each COP making only minimal progress. Variations of the criticism ‘the process has been saved, but not the climate’ underline this incremental approach.106 This step-by-step approach is related to the challenge of achieving consensus between more than 190 countries,107 which forms a significant limitation to the flexibility with which the UNFCCC’s decision-making bodies can respond to changing circumstances.

Another limitation to the flexibility of the climate regime is its lack of a dynamic system of commitments. In the face of continuing resistance to change the current system of Annexes (i.e., the ‘firewall’), it will be difficult to adapt the regime to changing circumstances (e.g., a change in greenhouse gas emissions; economic growth or stagnation; increased vulnerability; etc.) in different countries. Although further differentiation among countries is slowly creeping into the regime (as discussed in Sect. 10.2.5), it remains doubtful that abandoning the Annexes system entirely will be possible—at least in the short term.

10.3 A Pluralist Approach to International Climate Change Law as an Alternative Model

The discussion so far has highlighted that the adaptability of the climate regime is limited in at least two important respects: the evolution of commitments in accordance with changing national circumstances; and changing the overall ambition in light of new scientific evidence. Critics of the regime have not only pointed to these weaknesses but, in response, have also proposed alternative models that could fare better in terms of flexibility and adaptability. This section will examine one such model in particular, namely a pluralist approach to international climate change law and governance.

10.3.1 The Virtues of a Pluralist Approach

In recent years, an extensive body of literature on legal pluralism at the global level has emerged.108 Krisch distinguishes between ‘institutional’ and ‘systemic’ pluralism. The former relies on overarching norms to resolve interactions between different legal systems (e.g., the subsidiarity principle), whereas the latter, is rather characterized by ‘decentred management of diversity’,109 meaning that it is up to individual legal systems to determine their relationships visàvis each other. Although legal pluralism has been discussed in the context of domestic law, the focus here is on global legal pluralism.110 This concept generally refers to the simultaneous governance of a specific issue area by a variety of international, transnational and national legal regimes.

Perhaps surprisingly, insights from the study of global legal pluralism have rarely been applied to the case of climate change.111 This is surprising given that scholars coming from a range of different backgrounds have highlighted the potential advantages of a multi-pronged, decentralized approach to global climate change governance as compared to the ‘single regime’ approach of the UNFCCC.112 Notably, the late Elinor Ostrom advocated a ‘polycentric’ approach to tackling climate change.113 Others, in turn, have favoured a ‘bottom-up approach’,114 ‘experimentation’,115 ‘adaptive management’116 or even ‘clumsy solutions’ to the climate problem.117 It is well beyond the scope of this chapter to discuss these various contributions in detail. Yet, one thing they have in common is that the models they present purportedly offer greater flexibility through institutional diversity and decentralisation. A similar virtue is generally ascribed to legal pluralism.118 It is therefore helpful to first outline the basic reasoning: how could a pluralist approach enhance flexibility?

The virtues of a pluralist approach to international climate change law primarily stem from the fact that it ‘accounts better for divergences in community values, priorities, and perspectives in light of the distributive consequences at stake in the production of global public goods.’119 By doing so, a pluralist approach is more likely to be implemented, as it better reflects the views and interests of those (state and non-state) actors responsible for emission reductions and adapting to the impacts of climate change. A decentralized approach in which states take measures that they deem appropriate—in contrast to an approach where overall and individual targets are established in hierarchical fashion—allows for the consideration of both the costs and benefits of taking action,120 allowing for better alignment with states’ economic interests. Given that such interests and preferences are likely to change over time, a pluralist approach can thus be said to better respond to changing national circumstances, facilitating the contestation over norms that may be perceived excessively static.

The potential inclusiveness of a wide range of actors—in contrast to the mainly intergovernmental climate change negotiations—further strengthens the pluralist argument. Climate governance is increasingly shaped by, and affects, a multitude of actors beyond the nation state. Such actors not only include the usual suspects such as environmental nongovernmental organizations and energy suppliers, but also participants in carbon markets,121 sub-national governments seeking to reduce emissions or build climate resilience locally,122 insurance industries concerned about the impacts of climate change123 and so on. A pluralist approach embraces this diversity and acknowledges that international climate change law and governance necessarily involves this diversity of actors. By doing so, it arguably allows for a more flexible, comprehensive and deeper response to the climate problem.

A third advantage of a pluralist approach is that it implicitly encourages experimentation. A variety of national, regional and international policy or governance approaches opens up significant potential for ‘learning by doing’, where successful experiments can share experiences and be transferred across jurisdictions. An example often referred to in this context are the ‘laboratories’ conducting experiments with greenhouse gas emissions trading at the subnational level in the United States, with each of these systems drawing on different design elements, allowing for possible lessons learnt.124 By learning lessons from past experiences it is possible to adapt the legal system to changing insights and circumstances over time. Whether this potential is realized, however, depends on various factors, including agreement on broad goals, reporting mechanisms facilitating learning and the ability to regularly change goals, policies and procedures.125 Of course, some experiments—by definition—are doomed to fail. The appeal of a pluralist approach, however, is that with the existence of a variety of initiatives there will be other fall-back options.126

Related to this, a pluralist approach also draws attention to the multi-level nature of climate change law and governance.127 Acknowledging the co-existence and interaction of multiple legal systems at different levels is an important step towards a more integrated response to climate change. Moreover, cross-fertilization can facilitate learning across different levels of governance. To stick with the example of emissions trading systems mentioned in the preceding paragraph, trading schemes developed at national or subnational levels could learn from the rules and methods designed at the global level (e.g., in the context of the CDM) and vice versa.128

Lastly, pluralist approaches have been defended through systemic arguments: the complex or ‘wicked’ nature of the climate problem129 requires an equally complex response, meaning that any centralized, ‘top-down’ approach is bound to fail.130 Such an approach would further account for the contested nature of both the problem and its solutions.131 In other words, a pluralist response to climate change shows a better ‘fit’ with the underlying socio-economic and environmental problem(s),132 and therefore is arguably better able to respond to changes related to the problem.

Taken together, the arguments in favour of a pluralist approach to international climate change law in terms of enhancing flexibility are certainly compelling. At this point, however, it should be remembered that flexibility or even adaptability in itself are not necessarily the main objectives of international climate change law, but rather a means to an end—the latter being defined in the UNFCCC as the ‘stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’,133 and translated by the international community as the objective to keep global temperature increases below 2 °C above pre-industrial levels.134 The specific risks of blindly accepting the virtues of a pluralist approach for the sake of expedience and flexibility are discussed next.

10.3.2 The Baby and the Bathwater

Martti Koskenniemi succinctly phrased his criticism of legal pluralism as follows: ‘The problem with legal pluralism lies in the way it ceases to pose demands on the world.’135 This critique resonates also in the case of climate change. While the appeal of a pluralist approach to address a complex and contested problem is undeniable, the politics of climate change will affect both centralized and decentralized approaches to international climate change law and governance. This becomes clear, in particular, when critically examining proposed alternatives that suggest moving away from the UNFCCC in more detail.

Lamenting the ‘excessive multilateralism’136 of the UNFCCC/Kyoto Protocol, various scholars advocating a pluralist approach have proposed to focus any governance effort only on the major emitters, at times referred to as ‘minilateralism’.137 Yet, while this may make intuitive sense—at least from the perspective of flexibility and adaptability—it also misses one of the points of why the UNFCCC was created in the first place. For developing countries, which are disproportionately affected by climate change, the UNFCCC offers the key avenue to draw attention to their plight. Although it is unlikely that the UNFCCC will provide a forum for imposing some form of liability on large emitters, it still provides a crucial link between the causes of climate change (i.e., greenhouse gas emissions) and its impacts. Breaking this link by solely focusing on large emitters would mean that support to developing countries vulnerable to climate impacts would morph into some form of charity.

Another element of several proposals advocating a pluralist approach is their focus on international technology cooperation.138 Criticizing the climate regime’s limited advances in terms of clean technology development and transfer, the benefits of technology-oriented agreements outside the UNFCCC involving non-state actors have been suggested as a useful way forward.139 This enhances flexibility by not only seeking to reduce emissions through specific targets—the approach of the Kyoto Protocol—but also by incentivizing action by the private sector. Again, there is some validity to this criticism, and technology-oriented agreements outside the UNFCCC could indeed be more effective in reducing emissions in the long run—the jury is still out. Yet, a simple change of venue (or a multiplication thereof) to discuss and implement technology development and transfer does not alter the highly politicized nature of the issue at hand. The reasons for the slow progress in the UNFCCC are largely related to questions of whether developed countries need to transfer clean technologies to developing countries on a concessional basis, and whether intellectual property rights help or hinder technology transfer.140 Such questions will emerge both within and outside the UNFCCC, even if it may be possible that—given the involvement of key actors such as the private sector holding the intellectual property rights—initiatives outside the UNFCCC will be more effective in addressing these issues. In any case, what the advocates of technology-oriented approaches rarely clarify is how the proposed alternatives build on the progress, however limited, made within the UNFCCC.141

A diversity of policy instruments and experimentation with such instruments is another common thread in proposals emphasizing a pluralist approach. However, it has been observed that ‘incremental policies can create a path dependence that prevents or inhibits the development of better alternatives’,142

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