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Climate Change and The Law. By Erkki Hollo and Kati Kulovesi and Michael Mehling (eds).[Dordrecht; London: Springer, 2013. 693 pp. Hardback £153. ISBN 978-94-007-5439-3.]

Published online by Cambridge University Press:  20 November 2013

Emanuela Orlando*
Affiliation:
Lucy Cavendish College

Abstract

Type
Book Review
Copyright
Copyright © Cambridge Law Journal and Contributors 2013 

Since the adoption of the UNFCCC and the Kyoto Protocol, in 1992 and 1997 respectively, the law and policy of climate change over the past two decades have rapidly evolved and expanded enormously in both the scope and intensity of the regulatory activity. Because of the global dimension of the problem, the legal responses to climate change have been highly diversified and entailed action at different regulatory levels, rendering climate law one of the fields where the relationship and interplay between the international, regional and local level are at the same time more significant and challenging. In addition to such vertical expansion across multiple governance levels, climate-related legislation is also increasingly characterised by its pervasive and cross-cutting dimension. Its scope of application often extends beyond the realm of environmental law and intersects with the regulation of other sectors of the economy and social life. It is therefore not surprising that a vast and growing amount of legal literature has developed to address the various legal aspects and multiple regulatory challenges arising in relation with climate change. Against this background, Climate Change and the Law offers a very valuable and positive contribution to the ongoing scholarly debate in this evolving field of law. The volume is a sound collection of academic pieces that aim at exploring the various aspects of the relationship between climate change and the law. It comprises of 30 chapters articulated into five Parts and providing different perspectives into the study of climate law.

Part I seeks to define the legal and doctrinal boundaries of climate law and justify its understanding as an emergent discipline. Michael Mehling offers an interesting overview of the different regulatory strategies and innovative governance approaches available to address climate change at both domestic and international level, and identifies common principles and objectives capable of bringing coherence in a still highly fragmented regulatory framework. Kati Kulovesi's chapter illustrates the multi-layered nature of climate change law, characterised by the interplay between different sources of legal authority, and the growing role of non-state actors and soft law mechanisms in international climate governance. Her contribution thus provides a comprehensive analysis of these emerging trends in climate law and scholarship, beautifully combining legal theory insights with a focus on more substantive issues and practical examples. Finally, the chapter by Felix Ekardt concludes this first thematic area with an innovative analysis on the interlinkages between climate change, legal theory and justice. The author puts forward a justice-based approach to climate governance which would allow reconciliation between the diverse and competing human rights affected by climate change, and offers a route to achieve climate justice both inter-generationally and globally.

The second part of the book focuses on the institutional aspects and the “architecture” of international climate law, as originally set out in the UNFCCC and further shaped by the various Conferences of the Parties, international climate conferences and on-going legal and policy developments on the international level. In this context, Rowena Maguire analyses the conceptual foundations of the international climate change regime by identifying the objectives, principles and methods of the climate change legal framework. Especially valuable is the author's assessment of the role of international environmental principles in the practical application and implementation of mitigation and adaptation policies and measures. The following two chapters, respectively by Camilla Bausch and Michael Mehling, and by Antho Vihma, draw attention to the increasing recourse to alternative and less formal mechanisms and techniques in current climate governance. In particular, Bausch and Mehling highlight the emergence, alongside and outside the classic United Nations frameworks, of alternative venues for international climate cooperation and assess their potential in driving future mitigation efforts on the global level. Vihma, on the other hand, uses the ‘legalisation’ perspective to discuss the greater recourse to soft law in the definition of developed country commitments, though accompanied by more stringent transparency requirements related to the climate actions of all major economies. Finally, Meinhard Doelle provides an accurate analysis of the compliance and enforcement mechanism of the international climate change regime.

Part Three – ‘International Climate Law – Cross Cutting Issues’ – accounts for the expanding scope of international climate law beyond its original focus on mitigation and greenhouse gas reduction. In this perspective, Yulia Yamineva and Kati Kulovesi discuss climate finance, an issue that since the climate international conference in Copenhagen has been gaining a prominent place in the negotiating agenda. Their assessment of the progress recently made on this issue, particularly with the establishment of the Green Climate Fund, casts a positive outlook on the perspective for an improved governance structure for climate finance to be developed under the UNFCCC. Jonathan Verschuuren examines in more detail the pressing issue of climate change adaptation, with a comprehensive analysis of how the adaptation objectives under the UNFCCC framework find implementation through a wide range of policies at the national level, including water and coastal management, biodiversity, planning and land use, building and infrastructure and so on. The other two chapters focus on the growing relevance of justice considerations and human rights issues in the context of legal responses to climate change. In particular, Tomilola Eni-Ibukun discusses climate justice from the perspective of distributive justice in the context of the Clean Development Mechanism. Her contribution fills the gap left in the scholarly literature by the lack of a specific research on the critical question concerning the inequitable distribution in the implementation of CDM projects. The chapter by Timo Koivurova, Sébastien Duyck and Leena Heinamaki focuses on the relationship between climate change and human rights and provides significant insights on the positive implications of participatory rights for the functioning of the climate change regime as well as on the potential role of human rights law in shaping the climate change legal framework.

Continuing the discussions on the multifaceted and complex web of legal norms related to climate change, Part Four is dedicated to the relationship and interaction between international climate law and other sectors of law, thereby enabling a better understanding of the contours of international climate law vis-à-vis other international regimes. The four chapters included in this part analyse the normative interactions, potential conflicts and overlapping international obligations emerging between climate change and other international regimes. While offering valuable insights on the fragmentation of international climate law, these academic contributions also put forward interesting and innovative approaches on how to building coherence and enhance synergies across the various regulatory frameworks. The chapter by Harro Van Asselt accounts for the fragmentation of international law related to climate change, with an interesting and original analysis of the limits and opportunities of various strategies to manage regimes interactions and mitigate potential conflicts. He focuses not only on legal techniques, but also on the potential role that ‘political’ mechanisms of institutional cooperation, such as the Conferences of the Parties or Secretariats, could play in enhancing coherence between legal regimes. While Van Asselt's contribution takes a more general outlook, the following chapters address specific aspects of regimes interactions. In particular, Elisa Morgera explores the opportunities for a positive and mutually supportive relationship between the legal regimes of climate change, biodiversity protection and human rights. Her analysis of normative developments under the Convention on Biodiversity (CBD) offers an additional and innovative standpoint from which to examine the relationship between human rights and climate change. She outlines in particular how the CBD holistic approach to environment and human rights could help to fill the gaps in biodiversity protection and human rights in the development and implementation of climate change law. Annalisa Savaresi examines the fragmentation of the international law and policy framework for forest conservation and management, with special focus on the challenges and opportunities related to current endeavours to develop a normative framework for REDD+activities. Finally, Kati Kulovesi examines the substantive and institutional aspects of the relationship between climate law and international trade. She identifies potential sensitive areas emerging from the normative and institutional intersection between the UNFCCC and the WTO international regimes and outlines opportunities for enhancing coherence through closer cooperation and institutional coordination. Her analysis appears as a very timely exercise given the increasing prominence of these issues in the WTO context. To conclude this part, Ralph Bodle discusses geoengineering, one of the novel technologies emerging to counteract the negative impacts of climate change. His contribution provides an overview of the various geoengineering techniques and the existing international law applicable to them.

Part Five of the book offers a comparative analysis of the evolution of climate law and policy in a number of countries and regions. The chapters included in this part are very informative and serve to illustrate the highly diversified approaches to addressing climate change available in the different countries and world regions. They represent the appropriate complement to previous analysis of the international climate change legal framework, by providing significant insights on how the objectives, principles and substantive rules developed on the international level have found implementation in several national jurisdictions and regionally. Furthermore, they also enable a better understanding of the various factors – political, structural, economical, geographical – that contribute to shape the different level of commitment of the various countries in relation to climate mitigation objectives, both nationally and on the international level. More specifically, the chapters by Michael Mehling and David J. Frenkil, by Jane Glenn and José Otero, and by Yulia Yamineva examine climate-change-related developments in the United States, Canada and Russia, respectively. While examining the North-American and Russian position vis-à-vis the international mitigation commitments under the UNFCCC and the Kyoto Protocol, these chapters also highlight the relevance of the underlying constitutional structure and political context in shaping these countries' positions with respect to climate mitigation commitments on the international level. The chapter by Mascher and Hodgkinson reveals instead the difficulties that the transition towards a low carbon economy encounters in Australia, a nation known as being a major producer of coal and natural gas. Thus, whilst the passage of the 2011 Clean Energy Act signs a positive step forwards in the country's final endorsement of climate mitigation objectives, Australia's full transition to a clean energy economy appears hampered by the underlying tensions between the ambitious climate goals and the protection of the country's economic interests.

A specific chapter by Michael Mehling, Kati Kuolvesi and Javier De Cendra is dedicated to the European Union's approach to climate change. It traces the evolution of EU climate change legislation with special focus on its international and external relations dimension and on the EU's leadership role in this context. Felix Ekardt and Colin Reid focus instead on the domestic developments in two EU member states, respectively Germany and the United Kingdom. In contrast to the EU's proactive attitude to climate change both internally and on the international level, Hitomi Kimura describes the situation of ‘stasis’ and reluctance which characterises Japanese climate-related legislative developments. Of particular interest are also the various chapters addressing climate legislation in the world emerging economies. More specifically, whilst the analysis of climate change responses in South Africa, by Michael Kidd and Ed Couzens, describes a scenario characterised by enormous difficulties in reconciling environmental protection objectives with economic growth, the chapters on China, India, and Brazil reveal that not always the impetus towards economic and industrial development represent an obstacle to the adoption of legislation in the field of climate change. This part concludes with a chapter by Soledad Aguilar and Eugenia Recio which brings together an overview of the climate change legislative developments in a number of Latin-American countries, including Brazil, Mexico, Colombia and Ecuador.

Overall, this edited collection provides a unique contribution to the scholarship debate on climate change. It clearly succeeds in the challenging endeavour of taking stock of the wide-ranging legal issues arising in such a dynamic and rapidly expanding field of law. The various chapters are articulated in a coherent structure, combining in a systematic manner both the theoretical and doctrinal approaches with an accurate and informative analysis of the substantive and institutional aspects of climate change law and governance. This volume is thus a solid collection of pieces which I would certainly recommend to anyone who wish to gain an improved understanding of the complex web of legal norms addressing climate change. Besides its remarkable academic value, the book also represents an interesting reference tool for policy makers and practitioners involved in the ongoing discussions on climate change regulation and governance. Many of the chapters prospect innovative solutions and interesting approaches to current and emergent legal issues, and can therefore provide helpful inputs in current efforts to shape the future of the global climate change regime. The publication of this volume is therefore very timely. Indeed, whilst the most recent climate conference in Doha may have disappointed those expecting a more ambitious stance in the level of commitments to address climate change, it certainly marked an important step in gradually paving the way to a new deal on the post-Kyoto regime, and ultimately to reassert climate change as a world priority.