In many key areas of international law, from the preservation of biodiversity to disarmament, the legal solutions are severely hampered by the problem of “collective action”. In a world in which 185 states are sovereign and free, it is terribly difficult to reach any sort of agreement in the first place. This is particularly so when the costs and benefits of action are so unevenly distributed, where future risks are controversial and where there is little agreement on either the relevance or nature of historical responsibility for warming.
But there is a potentially even deeper problem. When people at dinner parties ask me: is international law really “law”, what they are really asking is whether there can be such a thing as law without the possibility of regular enforcement. In fact, international legal norms are singularly effective given this apparent lack of conventional enforceability. As the eminent American human rights lawyer, Louis Henkin, has remarked: most states obey most of international law most of the time. Still, it would be foolish to pretend that in the absence of a legislature and a police force, international law is a perfect system.
Problems with collective action abound when it comes to creating and enforcing global rules. Disarmament is one example. If all states were to relinquish nuclear weapons, the world would become a safer place. There is then a large incentive for, say, the UK to give up its nuclear capability. However, in a world of uncertainty, sovereignty and secrecy, the British may choose to keep their nuclear weapons because the very worst outcome would be one in which the UK disarmed (under the terms of some international law treaty) and other states did not. And in the absence of guaranteed verification and compliance, there are no guarantees that other states will comply.
Preventing ecological disaster is at least as large a challenge as achieving nuclear disarmament. And the global environment can be saved only if we all act collectively.
But there are several obstacles to achieving any sort of solution.
First, in the absence of transparent and enforceable standards there is a serious risk that some states will free-ride. In other words, they will enjoy the long-term environmental benefit of reduced emissions and will continue to reap the economic benefits of pursuing environmentally unfriendly, and still cheaper, economic policies. Unilateral compliance in the absence of uniform compliance might have adverse economic consequences for Australia without changing planetary prospects at all. This has been the Federal Opposition’s position for some time.
Second, it is very likely that global warming will have asymmetrical effects on states. Most states will suffer as a result of the planet heating up but some will suffer more than others (just as, say, Victoria may suffer more than Queensland from global warming). The projected average increase in temperatures (2.5 per cent by 2150) is just that: an average. Some regions will boil, others will experience a mild rise in temperatures; indeed, there may well be a small number of states and groups that benefit from the increasing temperatures (wine-growers in Sussex, summer tourism in Norway). Still others may experience a cooling effect (I have heard this said of my own home country Scotland, which is cold enough as it is but which may lose the warming effects of the Gulf Stream as it begins to absorb melting ice-caps from the Arctic). The problem here is that some states may not think it in their interests to conclude any sort of agreement at all.
Third, there is the deeply troubling problem of historical responsibility. Should the challenge of global warming be met by those who caused it? Or by those who will experience it? This of course goes to the heart of one of the perceived flaws of the Kyoto Protocol; namely that it failed to impose any obligations on developing world states. That seemed fair at the time. After all, the developing world was not thought to be responsible for global warming, and, of course, it was still developing.
On the other hand, the strategic imperative to reach agreement may work against the moral imperative to allocate blame or responsibility. One way to reach agreement is to buy the cooperation of Russia (this happened at Kyoto) and the United States, say. But this sort of strategic behaviour may also seem remarkably unjust (why should the rich villains be compensated by the poor victims?). We see historical responsibility for past injustices debated elsewhere (in relation to slavery, colonialism and so on). And this problem reminds us too of the current controversies in relation to the Global Financial Crisis where there is a perception that the victims (tax-payers, bank customers) are paying for the egregious mistakes of the villains (the bankers).
Finally, there is the problem of sovereignty. The fact is that states don’t have to sign up to anything. It is a basic principle of international law that states are bound to observe and respect only those norms or rules to which they have consented.
It is now no wonder, then, that Daniel Cole describes climate change as “the greatest collective action problem the international community has yet faced”. Strategic behaviour, free-riding, differential incentives and the imperfections of international law form a particularly dangerous cocktail. Little wonder that Kyoto was regarded as fatally flawed in execution and design. Will Copenhagen lead to anything better? States are notoriously beholden to rent-seeking private interests or corrupt public ones.
The policy debates in the US at the moment are precisely about the relationship between public goods (universal healthcare, a clean environment) and private interests (private healthcare providers, the car manufacturers). This is unlikely to change.
And yet, perhaps there is some room for optimism. It is worth recalling that so much has been achieved in international law despite the problems of agreement and enforcement. The world has a functioning legal system in which compliance is the rule not the exception. States, on the whole, don’t execute enemy POWs, they don’t imprison each other’s ambassadors and they don’t invade each other’s territories (at least not much).
Indeed, previous crises have been the catalyst for these sorts of changes. The horrors of World War II precipitated the creation of powerful legal instruments designed to protect civilian populations (The Geneva Conventions), prevent mass atrocity (The Genocide Convention) and criminalise torture (The Torture Convention). These negotiations were difficult and the resulting compacts were often initially disappointing.
But, to give just one example, though the Torture Convention of 1984 was the product of arduous negotiation and struck some observers as disappointing, it has had enormous influence on the way international law operates. Without the convention, it is unlikely that General Pinochet would have been stripped of his sovereign immunity in a London court room. Without the Convention, the present outcry over the maltreatment of detainees in the “war on terror” would have been much more muted.
International law is a law of unintended consequences. Even relatively mild treaty arrangements can be modified, moulded or appropriated in ways that offset some of the problems referred to above. It may be that agreements reached at Copenhagen will offer opportunities to activists to begin legal proceedings in national courts or to use international law in media campaigns to delegitimise certain forms of production or to change consumption habits.
Or it may be that Copenhagen will lead to some sort of framework agreement to be fleshed out in the future or, less likely, Copenhagen may fail and in failing inspire a popular backlash against the apparent recalcitrance of the political elites. Conversely, an international agreement might be one way in which enlightened political elites like the Obama Administration might sell onerous environmental policy to resistant local constituencies.
There are precedents. Even in the economic field where we might have expected states to most jealously guard their prerogatives. Many states are now part of a global economic legal order in which matters of economic sovereignty are decided by international panels and quasi-judicial bodies. They are prepared to do this because, at the negotiations, it became clear that there were benefits to be gained from a multilateral free trade agreements and that these benefits could only be realised if the problems of sovereignty and free-riding were overridden by robust enforcement methods like the possibility of judicially endorsed retaliatory measures.
The tendencies of states to behave selfishly, then, can be offset by their need to act collectively. And there is a precedent in the environmental area. After all, when was the last time you heard someone speak about the depleted ozone layer? When I was an undergraduate in the 1980s, the major global environmental threat seemed to arise from the destruction of the ozone layer through the emission of chlorofluorocarbons (CFCs). The Montreal Protocol in 1987, agreed to by hard-headed diplomats and international lawyers, phased out the manufacture and export of CFCs (despite some scientific uncertainty and the opposition of major European manufacturers). The result is an international legal initiative that is expected to yield net economic benefits of some 2 trillion dollars by 2060. Meanwhile, the hole in the ozone layer above Antarctica is projected to have closed at around the same time.
Perhaps Montreal can be the inspiration for something even bolder and more redemptive at Copenhagen.