1. Introduction
How are we to understand international law relating to climate change? How are lawyers working in the World Bank, the UN human rights system, and other institutions caught up in its production? Over the years, scholars have responded to only the first of these questions by delineating rules and institutions with a bearing on the climate problem in a search for disciplinary coherence.Footnote 1 Sometimes, responses focus on the layout or branches of the law such as the Paris Agreement, custom, and trade rules. Other times, scholars evaluate the law’s operative concepts, for example, ‘effectiveness’ and ‘transnationalization’. Laws addressing climate change reach across governance arrangements as much as they enable new ones, and the scholarship is likewise capacious. For the most part, however, the literature is doctrinal and policy-oriented.Footnote 2 Since after the Cold War when their endeavour began, scholars of ‘international climate law’ often vacillate between two sensibilities: aspiration and pragmatism.Footnote 3
I offer a relatively critical stance – a distancing from conversations internal to the discipline, while staying intimate. Unlike mainstream scholarship on the topic, and the few critical accounts so far,Footnote 4 I embrace a turn in broader international legal theory toward the practices that reproduce law in everyday life. Thus, whereas dominant literature qualifies norms then interprets and applies them or deploys empirical methods to classify, analyse and prescribe, this article describes everyday happenings inside what Sally Engle Merry calls ‘the array of small sites in which international law operates’.Footnote 5
To respond to the first question then, international climate law is a field of ideational and material practices.Footnote 6 It comprises expectations, routines, discourse, land, carbon, power, and other factors structuring local experiences of law across a constellation of sites. These are the sites of contemporary international law’s bureaucratic flourishing – multilateral banks, treaty-based regimes, UN agencies, and so on – where international law operates directly and by shaping plural legal forms. In other words, international climate law gives rise to and underlies assumptions driving organizational mandates, managerial procedures and professional techniques which a range of actors realize on a daily basis.Footnote 7
Following mundane enactments that generate such variable legal forms, I respond to the second question by mapping a group of ‘international climate lawyers’ who play a role within and across three sites. International climate lawyers emerged in the late 1980s with high aspirations for a treaty-based regime, and they continue to negotiate, advise participants and oversee the ‘rules-based order’ of diplomatic conferencing. In the 1990s, lawyers prefigured the Kyoto Protocol’s carbon market at the World Bank and in law firms, catalyzing a form of private transactional regulation. Finally, I investigate lawyering in activist networks from the mid-2000s that provoked a convergence between international law relating to climate change and human rights.
This article therefore populates institutions with lawyers who operationalize ‘multivalent’ international climate law practices within them.Footnote 8 My principal argument is that these lawyers belong to a loosely knit community befitting diverse sites and forms of law, which they help reproduce. By this I mean international climate lawyers engage in practices of mutual reinforcement that simultaneously diversify their field and the professional community. They do so by seeking out and propagating international climate law within and across sites, each hosting idiosyncratic practices that are historically contingent.
To illustrate my claim, I detail ways in which lawyers realize tendencies of heterogeneity and homogeneity drawing on the sites that I investigate. First, I argue that lawyers generate relative power to state the law between the UN climate regime and external sites of governance that contest, parallel and ultimately legitimize the regime’s authority for the benefit of the World Bank and human rights campaigns. International climate lawyers also sustain cores and peripheries that reproduce disparities between the Global North (North) and Global South (South). Institutions where international climate lawyers receive education and training are predominately located in the Anglo-American North, and lawyers from the North appear to be higher in number.
Second, I claim that international climate lawyers manifest heterogeneity and homogeneity through their common yet uneven ethical dispositions. Most lawyers are dedicated to managing the climate problem legally, but they are torn between rationalities of economy and justice when choosing the means to pursue their overarching commitment. How lawyers embody their ethical dispositions is, however, largely a matter of degree since they engage with doctrines, practices and institutions prevailing in the field, in particular international finance.
Third, I argue that lawyers share knowledge, skills and resources, while diverging with respect to others. This naturally results when they effect variable legal forms across sites of governance. Contrary to a standard refrain in the international law discipline, lawyers in the field that I examine are not a group of expert interpreters coterminous with law.Footnote 9 Practice theories demand a modest view of this bond: officials, activists, philanthropists and documents, among other people and materials, effect law in a clutter of practices. Nonetheless, lawyering remains distinctive amid the clutter, if mundane and specific to situated places. Professional climate law work ranges from safeguarding institutional procedures, to drafting carbon contracts, and to lobbying governments, depending on the case. Indeed, lawyering is surely more kaleidoscopic, and perhaps more congruent, than examined in this first look at professional practice.
Section 2 of the article describes a relatively small subset of international climate lawyers. In a thick ‘legal-ethnographic’ style, I describe their aspirations, resources, and activities in the three sites mentioned before.Footnote 10 Section 3 explores theoretical claims arising from that description to support my argument that international climate lawyers belong to a loose community marked by the heterogeneity and homogeneity of the field they help produce.
The article concludes in Section 4 with reflections on what is at stake in theorizing international climate law through everyday practices. In foregrounding practices, scholars can dig below the taken-for-granted rules and institutions that scholars are classifying for a discipline to, as Eslava and Pahuja say, ‘get down and dirty’ with international climate law in the mode of scholarly praxis.Footnote 11 When we do, the proliferation of international climate law across treaty-based regimes, international financial institutions, and international human rights systems appears as a purposive endeavour – one that may reify extant rationalities, institutions, and power in the broader field of international law.
2. International climate lawyers
2.1 Building a specialized treaty-based regime
International climate lawyers became engaged in producing, and later diversifying, their field in the lead up to the 1992 Framework Convention on Climate Change.Footnote 12 The Convention was negotiated during the UN Decade of International Law when states sought to revitalize public international law in the aftermath of the Cold War by embedding it in a host of new and old functional spaces including adjudication forums and development institutions.Footnote 13 The optimistic sensibility about positive law among some countries during the period is also reflected in the push to manage environmental degradation in treaty-based ‘regimes’ which encouraged international co-operation through diplomatic conferencing.Footnote 14 The Convention established infrastructure for the specialized ‘UN climate regime’: a set of principles, rules, institutions, and decision-making procedures meant to foster the progressive development of state commitments.
Legal professionals effected the liberal institutionalist rationality of this moment by helping to build the UN climate regime.Footnote 15 They entered talks about the regime as civil servants, working as they normally would on a portfolio of government mandates and swept up in shifting priorities, or having studied public international law in elite universities in the Anglo-American North with high aspirations for multilateralism. Hopeful that international law might address environmental damage and relieve geopolitical inequities, some launched hubs in the Global North to host specialized lawyers who contributed to designing the regime. A range of lawyers then maintained the regime through idiosyncratic professional techniques, albeit with disparities between the North and South that persisted from the earliest attempts to draft the Convention.
2.1.1 The Maltese proposal to establish a convention
It was an international law professor who persuaded Malta to raise the issue of climate protection before the General Assembly in 1988 and helped draft the Resolution that resulted.Footnote 16 Again, preferences for a treaty-based regime were in the air, but the professor’s initiative paved the way for action in the UN system. He had a prior history studying international environmental law, having scarcely completed his doctorate at Oxford, and had taken up posts as an Advisor to the Prime Minister and at the University of Malta. Referencing dire scientific and ministerial statements on the state of the climate, he proposed a multilateral strategy.Footnote 17
Specifically, he proposed that Malta sponsor a resolution to declare the climate system the ‘common heritage of mankind’. The professor therefore sought to reinvigorate the common heritage principle, which Arvid Pardo tendered on Malta’s behalf in a 1967 address to the General Assembly. This principle highlighted effects that the unbridled use of areas beyond national jurisdictions could have on the seabed and high seas and on existing inequalities between North and South, and proposed to share the benefits of resource exploitation.Footnote 18 In the new instance of climate protection, Malta took up the professor’s framing. Its reasons were not unlike its motivations some 20 years before. Previously, Malta tendered the principle with a ‘parochial’ drive to insert itself in international affairs as a newly independent state with a ‘cosmopolitan’ proposal.Footnote 19 Now after the Cold War, Malta aligned with states demanding a renewal of international law and asserted, ‘smaller States can also validly contribute to the work and efforts carried out by the United Nations’.Footnote 20
However, given the divisive history of the principle, especially its proprietary inferences, states deemed it ill-suited to the nature of climate change, which would require ‘global’ obligations of ‘protection’.Footnote 21 The General Assembly instead adopted the professor’s more palatable language of ‘common concern’, which was later included in the Convention and came to signal co-operative approaches to global problems.Footnote 22 The General Assembly Resolution also called for the Intergovernmental Panel on Climate Change (IPCC) to recommend elements for a treaty. The professor from Malta then co-chaired that work with a legal advisor from Canada’s foreign office and a British diplomat.Footnote 23
This would be the first instance where lawyers were involved in the reproduction of greater North-South dynamics in the emergent field of international climate law.Footnote 24 For, soon after receiving its mandate, states in the Global South resisted the IPCC’s work. Tensions between the North and South were brewing around the negotiation of environmental agreements since the 1972 Stockholm Conference on the Human Environment, when the North’s proposals for environmental protection batted against the rationality of ‘development’ ascendant since the 1950s and discourse in the South foreshadowing calls for a New International Economic Order.Footnote 25 The 1987 Brundtland Report manoeuvred a putative compromise in the notion of ‘sustainable development’ – linking environmental protection to poverty reduction and economic growth.Footnote 26 Nonetheless, states in the South arrived late to talks on the climate.Footnote 27 Representatives from the North dominated the IPCC and states from the South objected to their monopoly and focus on environmental, rather than development, matters.Footnote 28 Indeed, Brazil nearly blocked the IPCC report’s approval, insisting that the final version contain a qualification about unequal participation.Footnote 29
Following this controversy implicating the IPCC chairs, states in the South successfully pushed for the General Assembly to establish political negotiations, which it did in 1990.Footnote 30 Lawyers then served on the negotiating committee as civil servants, special advisors to delegations, counsel to international organizations and NGOs, and an international law professor advised the committee secretariat. Over just more than a year, they and other members negotiated to secure the Convention’s opening for signature at the 1992 Rio Conference on Environment and Development.
2.1.2 Legal representation and public interest lawyers
Among the legal professionals on state delegations was a group of British and American public interest lawyers advising Papua New Guinea, Saint Lucia, and Vanuatu. Some of these lawyers had been canvassing legal remedies to address the adverse effects of climate change, publicly arguing for a specialized regime coupled with litigation before the ICJ that would test novel principles of international environmental law.Footnote 31 Yet this subset of lawyers is most notable for having come from two newly minted centres that would become vital conduits for dozens of lawyers working in and beyond the regime, including at the World Bank, in law firms, and in human rights campaigns. Their organizations were the Center for International Environmental Law (CIEL) and Foundation for International Environmental Law and Development (FIELD).
CIEL was founded in 1989 by two British barristers and two American attorneys at King’s College Law School, but rapidly spun off into a separate organization in Washington, DC. The centre in England was then renamed FIELD. The British partners had studied at Cambridge under the tutelage of esteemed jurists in public international law and had been re-envisioning possibilities to address transboundary damage in the wake of Chernobyl.Footnote 32 Consistent with the rationality of the period, they were inspired by a vision that law might offer redress and curb abuses of power in the context of environmental harms. The barristers’ enthusiasm for international law was matched by the grassroots experience of their American counterparts, who were frustrated by weak gains in the US environmental movement. The four met at a conference and agreed, ‘international law and diplomacy needed to join forces with the public interest advocacy movement’.Footnote 33 The centres they founded inaugurated prominent hubs in the Global North for lawyers to touch down for practical training. And again, by means this article explores, staff and interns dispersed to external sites of climate governance.
The integration of lawyers from CIEL and FIELD into discussions on climate change was perfectly timed to the negotiating committee’s mandate. In their prior work exploring state responsibility for climate change, two of CIEL’s founders had urged peers to extend pro bono services to countries in the South, deploring geopolitical inequalities in the international legal process.Footnote 34 They had also sought to ‘latch’ onto countries vulnerable to climate change that had little resources.Footnote 35 At the 1990 Second World Climate Conference, they struck up a relationship with officials from small island states, they assisted the states to form a negotiating block (the Alliance of Small Island States or AOSIS, which they would serve for decades), and they drafted a definition of the ‘precautionary’ principle on behalf of AOSIS, a version of which made it into the Convention.Footnote 36 Within a year, a team of CIEL and FIELD lawyers was representing countries in the alliance seated across foreign office lawyers, diplomats, and other delegates negotiating the treaty.
Clearly, the trajectories of the international law professor from Malta and public interest lawyers from CIEL and FIELD do not exhaust how lawyers moved into the UN climate regime. Lawyers from government, universities, and firms also became fixtures, reappearing year after year. However, there is a history of unequal representation in the climate negotiations going back to the IPCC’s first report. To the degree these inequalities have been corrected, they were partly addressed through ‘imported’ representation from organizations such as CIEL and FIELD.Footnote 37 Similar to these centres, other specialized hubs that feed the regime with lawyers are located in, and attract, lawyers from the North while serving delegates from the South.Footnote 38 In addition, while there are many international climate lawyers from the South, they sometimes pass through the North for education and training, including through universities prized for international law pedagogy such as Cambridge, Oxford, and NYU. Some have also passed through CIEL, FIELD and the schools where they were based, King’s College London and SOAS. Notably, lawyers from the South sit on delegations for other countries in the South, redistributing professional capital between middle-income and poorer states.Footnote 39
Consider a lawyer from Sri Lanka who is a respected authority on international climate law. After completing undergraduate studies in Sri Lanka, she taught as a lecturer in environmental law, before obtaining an LLM and PhD on international climate law in the UK. She was a research fellow at an Amsterdam university and the World Bank, then returned to the UK to become the head of the climate policy department at a prominent international thinktank. From her post in Britain, she acts as a legal advisor to the chair of the Least Developed Countries negotiating group at the UN climate regime.
International climate lawyers from the Global South include prominent lawyers who have taken on senior leadership and staff positions at legal advocacy centres including FIELD, held posts at universities, negotiated on delegations, advised the secretariat, and served as the Secretary of the Conference of the Parties (COP). Development agencies are also partnering with seasoned lawyers to increase legal representation from the South.Footnote 40 Even so, imported capacity remains a feature of the regime (from North to South and South to South), as does disproportionate under-representation in ‘sheer numbers’, especially in the poorest countries.Footnote 41
Following the trajectory of lawyers described thus far, though not inclusive, therefore helps us glimpse flows of people through formative spaces and the capital that runs with them. That many international climate lawyers were educated or trained in the Anglo-American North indicates ‘the epistemic community is small’.Footnote 42 The field also hardens power differentials materially in numbers. Whether lawyering matters is a separate question. There are few lawyers who operate in the UN climate regime relative to other delegates and advisors. The COP adopts decisions on a consensus basis, somewhat evening out imbalances in bargaining power. Moreover, given contemporary international law’s provenance and alignment with the North, countries may not be habituated to, or value, bringing lawyers on board.Footnote 43 However, there are distinctive practices that lawyers effect in the UN climate regime, which suggests that professional representation matters.
2.1.3 A ‘culture of legality’ in diplomatic conferencing
Recall the founders of CIEL and FIELD were inspired to level the playing field for countries in the South. Being lawyers, for that purpose, they wielded legal rhetoric to ensure their positions were heard. As one CIEL founder put it, ‘If you’re an international lawyer it’s a small club: you know who taught me and I know who taught you, so let the games begin.’Footnote 44 This invitation to legal jockeying hints at a larger ‘culture of legality’ that pervaded the UN climate regime once established.Footnote 45 As a specialized forum for international law, the regime supplements customary rules and principles with procedures that encourage agreement on local rules.Footnote 46 In theory, local rulemaking occurs at a quicker pace than custom and treaties, although the regime upholds state authority to consent to binding law, such as protocols, and to negotiate informal law, such as decisions of the COP.Footnote 47 The regime is then buttressed by offices such as the secretariat. Each of these sources makes rules of varying legal forms depending on their mandate, normative authority, and rhetorical techniques. The COP’s use of the imperative ‘shall’ in non-binding decisions exemplifies the regime’s fluid legality.Footnote 48
Delegates at the COP, whether lawyers or not, therefore take seriously and negotiate through endogenous legal forms. COP decisions that are not formally binding are cited in recursive processes of legal reasoning. Principles in binding instruments, even if framed imprecisely, underpin the regime’s direction. In some measure, legal constraints on diplomatic rivalries are simply a base feature of international climate law’s specialization. Therefore, lawyers are not prized for speaking through law, per se. Rather, lawyers are distinctive because, apart from conducting themselves as others do, they are presumed to be competent with respect to idiosyncratic practices.
Some lawyering centres on the technicalities of the ‘text’. More often than not, negotiations take place over documents, rather than oral arguments alone. Documents are prepared before COP meetings and are edited in prolonged, graduated stages. They are an aggregate of moving parts – paper, computer screens, and voices entangled in nonstop push and pull.Footnote 49 Many actors touch documents, including lawyers and non-lawyers. However, for certain matters lawyers are regarded as proficient drafters. Lawyers give expression to the parties’ intentions with precision or ‘constructive ambiguity’.Footnote 50 Particularly when the obligatory form of a provision or instrument is in question, lawyers have authority to channel the parties’ intent.Footnote 51 Lawyers may also double-check language in a final text before it is confirmed. In Paris there was such a ‘comma’ committee that went through the agreement for legal and linguistic accuracy.Footnote 52
While lawyers advocate for myriad issues by definition, some are also considered ‘intrinsically legal’.Footnote 53 These typically comprise anything styled as ‘procedural’ including compliance, dispute resolution, institutional design, final clauses, and matters of liability and bindingness. In a site where legality is somewhat plastic, why these issues are more legal is unclear: they harken back to boundaries between law and non-law rooted in notions of hardness and enforcement. But when it comes time to negotiate procedural matters, lawyers serve a heightened role. Occasionally they chair meetings on point or break out to negotiate among themselves. Left to convince their fellow professionals, they may elevate rhetoric beyond the regime to exogenous instruments and jurisprudence.
Counsel for the secretariat reinforce these practices. Early on secretariat lawyers were wedded to programs dealing with compliance and procedural rules.Footnote 54 However, as the regime grew in size and complexity, a Legal Affairs unit was formed which elevated lawyering to a relatively autonomous practice.Footnote 55 Like other lawyers, secretariat counsel answer queries on law, prepare texts, ensure procedures are met, and ‘scrub’ COP decisions.Footnote 56 Entrenched in the melee of negotiations, there might be a secretariat lawyer in the room or on call ready to weigh in.
Unlike their counterparts supporting delegations, secretariat counsel purport to stay above the fray of politics. What is distinctive about all lawyers in the UN climate regime, however, is precisely their pursuit of international law’s promise to yield rules-based constraints. Within a fluid culture of legality, lawyers provide advice on, and negotiate procedures for, lawmaking specific to the regime, and they perfect textual elements in documents that constrain future decision-making. In their role as legal guardians, lawyers also organize talks around the COP to frame agendas and counsel governments on implementation. Though few relative to others engaged in diplomatic conferencing, lawyers thus help maintain the regime’s institutionalist operations and logic.
2.2 Dealing in carbon
The Convention set off a continuous process of diplomatic negotiations in which international climate lawyers discharge particular functions. Because the main obligations that the Convention imposed on the parties established the regime’s institutional framework, once it was running, the parties recognized that more was needed to achieve the objective of preventing dangerous climate change. They subsequently negotiated another instrument to raise substantive obligations. The 1997 Kyoto Protocol was their attempt at a substantive result.
The Kyoto Protocol is best known for setting emission reduction targets among states in the North. But it also spawned a global carbon market when it permitted states to exchange quantified emission reductions – carbon units – to meet their targets. Carbon markets instantiate an economic rationality that prioritizes freedom of choice, efficiency, and the lowest possible costs. Under the Kyoto Protocol, three so-called ‘flexible’ mechanisms bore out this rationale. States with targets could sell and purchase carbon units among themselves through ‘emissions trading’. They could buy carbon units generated from projects across their jurisdictions, which were intended to promote ‘joint implementation’ between Western Europe and the former Soviet Bloc, where reductions were easier and cheaper. Finally, under the Clean Development Mechanism (CDM), states could buy ‘offset’ units generated from easier and cheaper projects in the South. The CDM took the Kyoto Protocol’s carbon market global.
The global carbon market occupied legion actors in and beyond the UN climate regime. Financiers, project developers, local workers, carbon rights owners, brokers mediating deals, and government and corporate purchasers – all exercised tasks in sprawled out institutions that were more or less linked.Footnote 57 Lawyers had contributed to the birth of the Kyoto flexible mechanisms and some were market players too.Footnote 58 International climate lawyers advanced and sustained the market through legal arrangements for commercial transactions. Prefiguring, then bolstering, the Kyoto Protocol rules, they propagated new forms of international climate law at the World Bank and in law firms, beginning with the World Bank’s Prototype Carbon Fund.
2.2.1 The World Bank’s Prototype Carbon Fund
The World Bank has ties with the UN climate regime as trustee of the regime’s financial mechanism. The Bank’s affair with environmental investments and standards began more generally in the 1970s, growing ever stronger in successive decades.Footnote 59 Vocal critiques of damage that the Bank’s projects were causing to local environments and people mounted in the 1980s, alongside the rise in multilateral environmental talks. By mid-decade, the Bank accepted that environmental goals were aligned with its constituent instrument, culminating in a managerial directive and organizational restructuring to ‘mainstream’ environmental considerations across operations.Footnote 60 The Brundtland Report also took aim at the Bank around that time, prompting it to redirect economic instruments toward sustainable development.Footnote 61 The Bank, therefore, approved the Global Environment Facility in 1991 as a centralized fund for multilateral environmental initiatives, including lending for countries in the South to deliver programs with ‘global’ benefits.Footnote 62 The treaties opened for signature at the 1992 Rio Conference, including the climate treaty, accordingly entrusted the facility with their financial mechanisms.Footnote 63
The Bank therefore has a ‘two-way relationship with environmental governance’ whereby it seeks to buffer negative repercussions of lending practices and to actively influence global and local norms using economic instruments.Footnote 64 The Prototype Carbon Fund grew out of the Bank’s active entanglement with environmental governance. While talks that led to the Kyoto Protocol were still ongoing, the Bank’s president announced to the General Assembly that the Bank would create the Fund should the parties to the UN climate regime support it.Footnote 65 Part of the concept behind the Fund was that rules agreed upon in Kyoto could be ‘grafted’ onto energy projects already in the Bank’s portfolio or pipeline.Footnote 66 The Bank’s managerial policies and techniques governing terms of lending would be used for the Fund as well. For instance, the Global Environment Facility would provide experience using ‘baselines’ for projects to ensure financial transfers from North to South were limited to ‘incremental costs’ needed to yield ‘global’ benefits above what a project would normally cost (known as ‘additionality’).Footnote 67
The Prototype Carbon Fund differed, however, from the Bank’s prior models because it generated a market.Footnote 68 The Fund was not only envisioned for governments, but corporate investors for whom ‘the development of a new commodity – an emission reduction – which is an asset with a saleable value’, would make sustainable development projects ‘bankable’.Footnote 69 The Fund was also meant to be a ‘trail blazer’ for other financial institutions and corporate actors that might someday mediate transactions.Footnote 70 In short, the Prototype Carbon Fund prefigured a global carbon market that was conceived to entice state and corporate investors in sustainable development projects that would deliver ‘additional’ global benefits with a green light from the UN climate regime.
Of course, parties to the UN climate regime established market mechanisms. When they did, the Kyoto Protocol permitted them to apply carbon units generated under the CDM from 2000 onward to obligations in a future commitment period.Footnote 71 The Executive Directors of the Bank promptly approved a resolution to establish the Prototype Carbon Fund a year before that start date to pool contributions from investors for compliance purposes down the line.Footnote 72
The Kyoto Protocol lacked information to operationalize its market provisions, leaving the COP to flesh out the details over subsequent meetings. Protracted negotiations to confirm a ‘rulebook’ lasted until 2001 and the Kyoto Protocol did not come into force until 2005.Footnote 73 However, the mere potential of a market created a value for carbon units and the Bank moved to ‘lead from behind’ with its ‘prototype’ before the Kyoto rules were confirmed.Footnote 74 Indeed, the Bank faced hostilities because it was perceived to be ‘attempting to usurp the negotiating process, to assume a dominant role in the emission reductions market, and to impose its own practices on projects under the Kyoto Mechanisms’.Footnote 75
Because the Kyoto Protocol was vague as to how carbon units should be treated legally, counsel at the World Bank and in law firms spearheaded the legalization of carbon units and terms for their exchange to kick-start the market.Footnote 76 Distinctive lawyering practices of ‘carbon contracting’ thus emerged to manage transactions between the World Bank, host countries, and investors.
2.2.2 Emission reduction purchase agreements
It was a team led by counsel at the World Bank that drafted the first ‘Emission Reduction Purchase Agreement’ (ERPA).Footnote 77 Contrary to expectations that the Bank’s routine legal practices would be used for carbon markets, as discussions progressed between the Bank and Latvia for the first funded project, the Bank decided that a direct investment, modelled on Global Environment Facility practices, would not incentivize market activity.Footnote 78 Consequently, ‘the agreement was transformed from a traditional project finance agreement into a totally new instrument’ – the ERPA.Footnote 79
The original ERPA was a ‘forward contract’, meaning it made funding to Latvia conditional on the delivery of certain actions and emission reductions. Under a forward contract, the purchaser is all but relieved of risk: since payment is contingent on outcomes, the risk is borne by the carbon seller.Footnote 80 The ERPA required independent verification of the emissions abatement as required for some Kyoto project-based credits.Footnote 81 It was also underwritten by a pledge of carbon units that Latvia would be allocated under the protocol (as a state in the former Soviet Bloc with targets) in the event of failure to deliver. Incipient ERPAs, such as this, were thus ‘bespoke bilateral agreements’ with sui generis legal rights attached to details including verification, delivery of carbon units, and flexibility for eventual concordance with the Kyoto Protocol.Footnote 82
Lawyers might typically sit down to negotiate terms of contract with a counterparty over several days, then revise the documentation and tweak remaining issues.Footnote 83 In essence, the terms would assign ownership over a right and mitigate risks to the transfer of legal title. Carbon contracts pose risks similar to other large-scale commercial transactions such as failure to deliver, political disruptions, force majeure scenarios, and conflicts of laws when resolving disputes. The latter risk lawyers resolved with arbitration clauses.Footnote 84 The others were generally accounted for in the negotiated price, though contracts might also provide for risk-sharing arrangements, including upfront loans and progressive revenue disbursements.Footnote 85 Still, while ERPAs were initially being drafted, carbon markets were brand new: particular risks arising from dealing in carbon were unknown and, above all, the rights at stake were not classified in legal terms. In other words, ‘[t]he key issue parties faced was defining what was being purchased’.Footnote 86
In the 1990s, most states did not classify carbon in domestic legislation and lacked provisions for its commodification, purchase and sale. Without direction from the UN climate regime, moreover, the legal nature of carbon in a global market was liable to be framed variously. Arguably, the solidification of carbon as an ‘object’ of international law dates back to the Convention since it commits parties to report national emission inventories.Footnote 87 However, imagining carbon as a legal object representing a bundle of activities and rights that is measurable as a unit to be exchanged for an equivalent bundle somewhere else in the world was an ‘essential precondition’ for the carbon market that the Kyoto Protocol envisioned.Footnote 88
ERPAs were an experimental ‘technology’ that gave an unprecedented commodity legal definition.Footnote 89 Carbon units may resemble a property right, financial instrument, administrative permit, or further legal artefact, and their classification depends on the context in which they are created and exchanged. In drafting purchase agreements to capture novel legal relations, lawyers fashioned an elaborate patchwork of public international law (from the Kyoto Protocol), domestic contract, tax and property law (from host and investor states), and private international law (choice of laws and forum). To paraphrase one transactional lawyer, for many years they basically made the law up.Footnote 90
During the World Bank’s move to environmental programming in the 1980s, it began to appoint lawyers specialized in environmental law and trained operational lawyers to manage legal aspects of environmental issues raised by lending.Footnote 91 Legal professionals at the forefront of ERPAs included a former international environmental law professor from the UK who was Chief Counsel of the World Bank.Footnote 92 He and another Bank lawyer, an environmental law specialist from the US, had been delegates for the Bank in the Kyoto negotiations. The Bank also hired a former CIEL trainee to work on carbon finance. Furthermore, it sought advice from external counsel who had recently founded a climate change practice group at a firm headquartered in Australia, Baker & McKenzie. Having been involved in negotiating the CDM, and anticipating the market would engage the private sector, one of FIELD’s founders branched out to establish the climate practice group with another friend who studied international environmental law at Cambridge.
Apart from their work for the Bank, these lawyers partnered with other early mover funds to develop contracting practices, some with different nomenclature and terms. They advised on regional and domestic emissions trading systems. Moreover, they published texts considered ‘bibles’ for the market.Footnote 93 In the process, lawyers forged new modes of international climate law through transactional practices adapted to the routines of established institutions. With increased activity, contractual terms also crystallized in model agreements becoming private regulation that ‘paralleled’ the UN climate regime rules.Footnote 94 Transactional lawyers at the World Bank and in law firms prefigured the Kyoto Protocol when they gave carbon a legality identity. In doing so, they bolstered the UN climate regime’s authority to sanction market mechanisms and reified the Kyoto Protocol’s economic rationality for the treatment of carbon.
2.2.3 Boom, bust, reboot
Between the Prototype Carbon Fund’s effective date in 2000 and the end of the decade, carbon markets boomed. The Netherlands earmarked a significant budget to purchase carbon units and followed its own approach in partnership with and coincidental to the World Bank.Footnote 95 The EU Emissions Trading System was approved in 2003 as a cornerstone of the region’s climate policy and ascended to the largest market to date.Footnote 96 A ‘voluntary’ carbon market surfaced to deliver CDM and makeshift project-based credits. As it had done previously, the Bank also ‘pushed the envelope’ on speculative funds: the BioCarbon Fund and Forest Carbon Partnership Facility bypassed Kyoto Protocol rules to prefigure a finance scheme for avoided deforestation in the South. It was (and remains) controversial in the UN climate regime, albeit a version was later accepted and given the acronym REDD+.Footnote 97
Unsurprisingly, the influence of international climate lawyers who spearheaded ERPAs was challenged at the height of the carbon market. Commercial and financial services lawyers dealing in cross-border investments jumped into the mix. Carbon units were packaged into sundry derivative products and traded on secondary markets involving major transnational firms such as Morgan Stanley, Merrill Lynch, and later JP Morgan and Norton Rose. As the market ballooned, purchase agreements matured to reflect sophisticated transactions, such as ‘spot’ contracts for pre-verified CDM units which could be delivered in fixed volumes instantaneously.Footnote 98 Financial institutions and corporations familiar with the International Swaps and Derivatives Association master agreement turned to it for streamlined exchanges.Footnote 99
Perhaps because purchase agreements are confidential or because they circulate in the background of international climate law, they have received scant examination. Select accounts suggest that, despite standardization, purchase agreements may have been technically burdensome for sellers in the South.Footnote 100 Furthermore, agreements may have predominantly applied English law and rarely the law of host countries.Footnote 101 An initiative of the Inter-American Development Bank involving lawyers from the North and South sought to shift this balance by disseminating an open-source template in multiple languages with guidance for sellers in the South.Footnote 102 This may have balanced the bargaining power of contracting parties, yet must also be added to multivalent legal forms that sustain a particular economic rationality.
In any case, due to a confluence of events – intractable negotiations over the future of the Kyoto Protocol, crashing prices in the EU Emissions Trading System, and the global economic crisis – the bubble burst.Footnote 103 Lawyers who were brokering carbon transactions followed the market; they retreated into a monopoly that now supports few firms. Aside from dealing in carbon markets, persisting transactional lawyers offer technical legal services to the corporate sector focused on climate risks and benefits. Their training has evolved to include ‘true’ securities and corporate lawyers, turned climate specialists, addressing issues such as mergers and acquisitions, infrastructure projects, energy regulation, corporate social responsibility, and securities disclosures.Footnote 104 Meanwhile, they stay apprised of and persist in defining international climate law in the UN climate regime, being legal advisors to administrative bodies and delegations as well as to government actors putting international commitments into domestic legislation.
It merits remarking that carbon markets are far from obsolete. The Paris Agreement inaugurated new approaches somewhat akin to emissions trading and the CDM.Footnote 105 The former, called ‘internationally transferred mitigation outcomes’, will function without the UN climate regime’s formal oversight, meaning it will attract yet more institutions and standards. These markets are embryonic and may not look the same as prior iterations, but they will no doubt require legal transactions.
2.3 Advocating for a climate-human rights link
If transactional lawyers branched out and diversified the field of international climate law to prefigure the Kyoto Protocol’s carbon market, those engaged in human rights activism have done so to remedy the UN climate regime’s deficits. Much like development projects ‘gone wrong’, sustainable development projects in the South feeding into the CDM have a record of grievous consequences.Footnote 106 They may involve infrastructure developments and land use change that displace local communities and indigenous peoples, and compromise their ties to land and water, livelihoods, culture, and safety. This has occurred visibly in the construction of large hydroelectric dams.Footnote 107 However, the CDM has scant due process requirements that might thwart or redress negative repercussions of projects and activists feared this would be likewise with REDD+.Footnote 108
More generally, while the Convention and its protocol use rhetorical language to acknowledge the impacts that climate change has on people, they refrain from stipulating associated duties that states owe to individuals and groups.Footnote 109 Civil actors are afforded little influence in diplomatic negotiations since lawmaking at the COP is rooted in state reciprocity.Footnote 110 The UN climate regime also lacks a dispute resolution forum where arguments could be made about the harms that individuals and groups suffer in the absence of state action.Footnote 111
In this context, activists have fought for the recognition of human rights that reframe international climate law.Footnote 112 Lawyers belong to the ranks of these networked campaigns. Quite distant from the lawyering practices examined so far in the UN climate regime and World Bank, their focus has been on provoking a convergence between two apparently separate branches of international law.Footnote 113 Given the deep involvement that a range of actors have with human rights practices, and that lawyers engaged with human rights activism take on traditional strategies of activists, the distinctiveness of their lawyering practices is messy and difficult to isolate. However, lawyers perform characteristic functions as both ‘technicians’ and ‘campaigners’:Footnote 114 lawyers identify rather abstruse knowledge about hitherto disparate legal rules and institutions, and strategies to tie them together.
2.3.1 The relative autonomy of climate and human rights
International law relating to human rights and climate change developed as two functional branches of international law with seemingly distant norms, discourses, routines, and actors institutionalized in relatively autonomous material sites. Although rights-based approaches did not make their way into instruments of the UN climate regime until recently, debates about their inclusion have followed a meandering path dating back to the Convention’s negotiating committee.Footnote 115 In the earliest instance, states in the South had argued for language in the Convention recognizing ‘the right to development is an inalienable human right’, which states in the North resisted as it could imply a right to financial assistance or to emit.Footnote 116 Meanwhile, states in the North pushed for the term ‘sustainable development’, which those in the South resisted because it could make financial assistance contingent on indicators of ‘sustainability’.Footnote 117 The negotiating committee settled on proclaiming that parties ‘have a right to, and should, promote sustainable development’, which elevates sustainability and removes any teeth that a protected human right might have through the qualifying term ‘promote’.Footnote 118
Whether the proposed human right to development would have transformed the field of international climate law is anyone’s guess. One way or another, the two fields have been largely disconnected. This is not to suggest there is an ontological break between issue areas or an inevitable ‘fragmentation’ of international law according to some historical progression. From the viewpoint of everyday practices, climate law and human rights law are purposive enterprises that actors realize more or less intentionally in the ‘patterned activities’ of daily life.Footnote 119 The histories and structures by which we recognize fields of law are products (and productive) of people doing things with law contingent on aspirations, acquired and modified techniques, and materials at their disposal.
Paradoxically, while international human rights law can be ‘decentred’ in this way, and is therefore ‘non-universal’, one of the hallmarks of human rights practices is to claim universality.Footnote 120 The discourse of human rights is also pragmatic, accessible, and used by widespread grassroots, subaltern, and elite peoples. International human rights practitioners therefore constantly move beyond institutions designated for the field’s elaboration in UN, regional and domestic systems. Activists reconceptualize various matters through rights framing, transplant rights discourse across ‘global’ and ‘local’ places, and work on specific cases while highlighting grievances arising in those cases as a mode of transnational persuasion.Footnote 121 All of which is to say that human rights activists are ‘translators’ who occupy a position of ‘betweenness’ from where they ‘vernacularize’ international human rights law in plural spaces, while they also redefine whatever issue is being characterized as militating rights protection.Footnote 122
As for international climate law, activist lawyers have sought to vernacularize human rights in this field, and to redefine extant climate law norms and institutions, motivated by an ethical commitment to justice. In promoting a convergence across fields of international law, they have thus sought to remedy perceived deficiencies of the UN climate regime mentioned above.Footnote 123 Lawyers advising small island states began explicitly calling for these types of human rights-climate links in the late-2000s through a two-pronged campaign. They hedged their bets by seeking to persuade delegates in the UN climate regime to adopt human rights language, while they also undertook a ‘boomerang’ strategy characteristic of human rights activism by soliciting external actors – in this case human rights bodies – to prod the UN climate regime.Footnote 124
2.3.2 Tying branches of international law together
The precursor to this campaign was a 2005 petition to the Inter-American Commission on Human Rights, which alleged that US failures to regulate emissions violated the human rights of Inuit people.Footnote 125 Two US-trained public interest attorneys had conceived the claim and raised it with the main petitioner a few years prior. One was a long-time Director of the Climate Change Program at CIEL and the other the Managing Director of the International Program at Earthjustice, who had formerly practiced international human rights law.Footnote 126 Lawyers at both environmental NGOs had already been working toward linking human rights with environmental matters at the World Bank and in the UN and Inter-American human rights systems.Footnote 127 The attorneys approached Inuit leader Sheila Watt-Cloutier to propose a collaboration with the Inuit community in an effort to refocus the linkages they had been making on climate change.Footnote 128
The attorneys pitched a petition to the Inter-American Commission, in part because an NGO or individual could claim standing.Footnote 129 Through the regional system they could target the US which had only just rebuffed the Kyoto Protocol and was then the world’s highest emitting state.Footnote 130 A petition might also generate publicity that could ‘shift the debate’ about climate change to a ‘human story’, as human rights activism purports to do for other matters.Footnote 131 It might even have precedential value for further litigation.Footnote 132
With Sheila Watt-Cloutier taking charge of leadership in the community, the lawyers drafted the petition with her legal counsel.Footnote 133 Watt-Cloutier and her team gathered stories from hunters and elders so that ‘the lifeblood of the document became the Inuit voices’.Footnote 134 The final petition wove together these stories with scientific reports and international law doctrines from heterogenous sources including custom, human rights instruments, and the climate Convention. In the end, the Commission declined to assess the petition without prejudice; however, it granted a public hearing to Watt-Cloutier, her counsel, and attorneys from CIEL and Earthjustice.Footnote 135 The petition also served as an example of ‘creative lawyering’ for future strategies: it brought civil experiences into the domain of international climate law.Footnote 136 As well, by evoking doctrines from ostensibly separate branches of international law, lawyers heralded possibilities for interplay and convergence.
Following the Inuit petition, campaigns shifted away from adjudication toward getting ‘the issue on the UN agenda’.Footnote 137 The Inuit petition was successful in its goal of publicizing the human rights-climate link and, in 2007, the Maldives contacted CIEL to help prepare a declaration on human rights for small island states.Footnote 138 CIEL then assisted in drafting the Malé Declaration, which contained the boomerang strategy.Footnote 139 Their eventual target in the UN climate regime would be a new stream of negotiations on an agreed outcome, apart from the Kyoto Protocol, which the COP launched in 2007.Footnote 140 By then it was clear that parties were divided as to whether there should be further targets under the Kyoto Protocol after 2012 when its initial commitment period would expire, primarily due to conflicts over burden-sharing between North and South. With the US especially pressing for an alternative, the COP decided to negotiate a novel agreement. The COP’s negotiations were set to conclude in Copenhagen in 2009, but they were divisive and prolonged, lasting until 2015 in Paris.
For almost a decade until Paris, lawyers played multiple roles as the boomerang strategy unfolded. In 2008, consistent with the strategy, the Maldives sponsored a resolution at the Human Rights Council requesting the Office of the High Commissioner for Human Rights (OHCHR) prepare a report on the relationship between human rights and climate change that would be made available to the COP.Footnote 141 That would be the first in series of resolutions, workshops, reports, and statements from arms of the UN human rights system, which on occasion prodded the UN climate regime explicitly.Footnote 142 Lawyers engaged in activities such as advising states and drafting submissions as well as making representations on behalf of their organizations.
For example, CIEL and Earthjustice assisted states obtain a resolution from the Human Rights Council establishing an Independent Expert on Human Rights and the Environment (whose mandate was extended and renamed , Special Rapporteur).Footnote 143 States pushed for a special procedure on human rights and environment, rather than climate, to placate concerns the climate agenda ‘was premature’.Footnote 144 The lawyer appointed to the role, an American international environmental law professor, had nonetheless published, acted as special counsel to CIEL, and advised the Maldives, respecting that very agenda. In his words, the ‘position provided a focal point for discussions’ on climate and human rights.Footnote 145 During the mandate, he issued reports, attended the UN climate regime, and championed statements from Special Procedures mandate-holders urging the COP to anchor climate actions in human rights obligations.Footnote 146
The strategies of lawyers in the UN climate regime were met with equal success. The year before negotiations were set to expire in 2009, a group mainly comprised of lawyers founded a network that would push to embed human rights in the agreement. Some of these lawyers had previous experience with international human rights law and were working for environmental NGOs such as CIEL, Friends of the Earth, and the Asociación Interamericana para la Defensa del Ambiente. When they attended the COPs, public interest lawyers knew who their likeminded peers were. Lawyers collaborating on projects or working independently would gather at an annual dinner on the sidelines of the meetings. Seeing the need for broad-based collective mobilization, public interest lawyers served a convening role by helping to propel an even greater network, the Human Rights and Climate Change Working Group, which welcomed a large swath of actors from the North and South: civil actors, state delegates, NGOs, and international organizations.Footnote 147
After the climate talks failed to reach an agreed outcome in 2009, the Working Group, among other networks, persuaded states to integrate human rights language the following year in a COP decision that reached beyond the UN climate regime’s instruments to reference a Human Rights Council resolution.Footnote 148 In the same decision, members were also influential in obtaining procedural ‘safeguards’ to guide REDD+.Footnote 149 Beyond the COP negotiations, members filed communications with administrative bodies of the UN climate regime, for instance requesting due process measures for CDM projects. They also provided direct support to communities with allegations of human rights violations arising from the CDM.
Momentum kept building as Paris drew near. The Working Group helped mobilize influential actors, such as the OHCHR, the Special Rapporteur, and the Mary Robinson Foundation and enlisted major human rights organizations, such as Human Rights Watch, and Amnesty International.Footnote 150 Representatives of CSOs, informal caucuses (for Indigenous, youth, and women and gender constituents), and other groups then drafted text they could all buy into. Several months before the COP, they were able to maneuver the text into the draft outcome prepared for the negotiations. Finally, they persisted in raising the text with state delegations. Working hand-in-hand with allied states, they attended informal gatherings and closed-door meetings. They peddled the text, modifying it as needed, doing damage control to keep it in, until it rose to an issue for the COP’s last 24 hours. In the end, the group was unable to persuade states wary of rights-based approaches to adopt an operative provision – members of the group believed such a provision could force parties to streamline human rights into the treaty’s implementation. This setback notwithstanding, the amended text made it into the preamble of the Paris Agreement.
2.3.3 Lawyering through legal hybrids
The preambular endorsement of human rights is ambiguously circumscribed to generate a ‘hybrid’ terrain between climate change and human rights law.Footnote 151 For instance, the usual duties to ‘respect’, ‘protect’ and ‘fulfil’ human rights are reframed with the terms ‘promote’ and ‘consider’ replacing the latter two duties, thereby avoiding positive obligations to prevent violations and take steps toward the realization of human rights.Footnote 152 Duties apply to the parties’ response measures, such as CDM projects, but not to their ambitions to reduce emissions. They are also attached to the ‘respective obligations’ of the parties, frustrating any interpretation that the Paris Agreement imposes new duties, for example on parties that oppose human rights.
Regardless of careful drafting, activist lawyers have begun to extend the normative force of the preambular recital beyond formal delimitations. Lawyers have also added to the treaty’s perceived legitimacy insofar as they cite it as an authoritative source for the human rights-climate link when transporting international climate law elsewhere. A recent petition against the oil industry before the Philippines Commission on Human Rights offers an example.Footnote 153 The petition was drafted before Paris but lawyers have since cited the preamble in amicus briefs supporting the petitioners.Footnote 154 Recalling the creative lawyering used in the Inuit petition, they evoke custom and human rights instruments along with new sources such as the Paris Agreement, principles regarding corporate liability, and the string of UN human rights system documents that activists obtained.
In other instances, lawyers cite the Paris Agreement and further outcomes of the boomerang strategy in litigation that is spreading the ‘global’ recognition of the human rights-climate link to ‘local’ courts.Footnote 155 There has been a resurgence and diversification of the rights-oriented litigation that the Inuit petition ushered in.Footnote 156 International climate lawyers are branching out into transnational litigation networks, partnering with local NGOs and sharing accrued knowledge.Footnote 157 They are also expanding public advocacy centres that normally serve delegations from the Global South to ‘support meritorious climate cases aimed at holding fossil fuel companies and other climate polluters liable’.Footnote 158 All the while, lawyers are making submissions in the UN climate regime to embed human rights into rules that will operationalize the Paris Agreement’s carbon markets, as they did with the CDM and REDD+, provoking a further convergence and legitimation.Footnote 159
3. A loose community befitting the field
Returning to the questions posed at the outset of this article, seen from the viewpoint of everyday practices, international climate law is an enterprise realized more or less according to people’s aspirations for the world and the law, the routines they emulate and modify, and their unequal capital, among other social and material conditions. Lawyers sought to chart out international climate law as a functional domain with a sense of optimism about novel forms of public international law during the aftermath the Cold War. Their motivations and experiences varied but many were committed to ideals of liberal institutionalism that a rationally designed regime might perfect. After the climate Convention institutionalized principles and managerial arrangements for state negotiations, lawyers set out to propagate international climate law in multivalent forms that enacted divergent rationalities about how the climate problem should be handled legally. These they adapted to fit historically contingent practices in established sites of governance such as the UN human rights system and World Bank.
Over three decades, international climate lawyers thus spread from a tight club to a diffuse group effecting practices of mutual reinforcement that simultaneously diversified their field and community across bureaucracies of international law. My legal-ethnographic description of a few small sites where lawyers helped produce the law cannot capture every facet. There are lawyers, for instance, who conduct ‘technical assessments’ of domestic laws and institutions in the South for UN agencies and World Bank funds to determine whether these countries are ‘ready’ to receive REDD+ payments.Footnote 160 The International Bar Association is drafting a model statute for a unified legal framework for climate litigation that would reach into domestic jurisdictions, based on the precedent of harmonized investor-state arbitration laws.Footnote 161 UN Environment is also cataloguing legislation to facilitate law reforms that implement the Paris Agreement, while providing related ‘technical legal advice’ for ‘capacity building’ to countries in the South.Footnote 162
These few examples support my primary contention, which the sites that I investigate throw into relief: there is a base tendency among international climate lawyers to manifest similarities and differences across their field in ways that are meaningful to power dynamics between institutional and geopolitical cores and peripheries, to the ethical commitments of international lawyers, and to proliferating forms of international law. I consider these permutations of heterogeneity and homogeneity in turn before reflecting, in the last sections of this article, on what is at stake in theorizing international climate law through practices.
3.1 Reproducing cores and peripheries
International climate lawyers reproduce cores and peripheries along two axes constituting hierarchies of power to ‘speak the law’. Along one axis, institutions have relative authority to settle doctrine and practices in the field; and along the other, there are North-South dynamics that channel the flow of lawyers to these institutions. The two axes work together to consolidate power in the UN climate regime’s state delegations which have uneven North-South legal representation. External lawyers nonetheless intentionally bolster the authority of the UN climate regime to serve their purposes.
The UN climate regime is the original site for international law relating to climate change and it has maintained authority to decide state obligations and legitimize derivative norms taken up by courts, international organizations, corporate firms, and domestic jurisdictions. As this article has shown, whereas international financial institutions and human rights activists have their own expectations about what the law should say, lawyers have helped them effect a ‘double movement’ whereby they generate rivalling norms in external spheres of authority before referring to, animating or otherwise bolstering the UN climate regime’s authority to legitimize any such norms.
On more than one occasion, lawyers assisted the World Bank to lead the UN climate regime from behind on finance schemes by spearheading the Prototype Carbon Fund and later forest sector funds through technical carbon contracts. When the UN climate regime authorized a global carbon market, transactional lawyers persisted in shoring the market up through ERPAs, which they adjusted to Kyoto Protocol rules but otherwise managed untouched in their proper domain. Activist lawyers making a human rights-climate link used a boomerang strategy that solicited the UN human rights system to pressure the UN climate regime, while also targeting the regime with direct lobbying efforts. Now, they cite the Paris Agreement among other outcomes of their efforts as authoritative sources of law in domestic courts.
Peripheries stay tethered to the UN climate regime because lawyers use legitimated doctrines and practices in this way and also because they engage in ‘role splitting’.Footnote 163 That is, international climate lawyers assume multiple roles in the field, jumping inward and outward from sites of governance, especially the UN climate regime. Take for example the American international environmental law professor who became the Special Rapporteur fighting for a human rights-climate link after advising the Maldives during the boomerang strategy as special counsel to CIEL. Or consider one of FIELD’s partners who advised AOSIS at the COPs, then launched Baker & Mackenzie’s climate finance group, which advised the World Bank on carbon transactions. Lawyers also continue to advise and negotiate on behalf of delegations, and to consult bodies of the UN climate regime, even as they switch professional affiliations. Through role splitting, during a period or lifetime, lawyers move transnationally across the field, consolidating authority in institutions where they enjoy professional cachet.
Role splitting brings me to the second axis along which international climate lawyers reproduce cores and peripheries: lawyering practices in the field replicate power disparities between North and South (and between poorer and richer countries in the South). From the push to establish a treaty-based regime, tensions between North and South have defined international climate law. The field is characterized by opposing understandings of responsibility and by material inequalities, both tied up with the legacy and reincarnations of colonialism. The practices examined in this article suggest that lawyers have embodied these dynamics at times. For instance, when drafting legal options for a convention on the IPCC, exporting legal representation to the COP (from North to South and South to South), soliciting plaintiffs for test litigation, and facilitating conditional and investor-friendly transactions.
There has been resistance to such practices, such as where lawyers drafted a rival contract template to balance the bargaining power between carbon sellers and buyers. Recently, the employment of Northern consultants by a small island state responsible for hosting the COP also became a flash point for geopolitical contestation.Footnote 164 The predominance of education and training in elite universities and public advocacy centres in the Anglo-American North, through which lawyers from the Global South also flow, speaks to and muddles these tensions.Footnote 165 For, irrespective of where lawyers come from, their practices accomplish a ‘structural homology’ that binds international climate law to parochial knowledge and mercurial concepts, such as sustainable development.Footnote 166
Accepting that lawyering practices may well be motivated by ‘good intentions’ – as lawyers transfer professional capital and funds from richer to poorer peoples – it is possible that what appears beneficial, can obscure inequalities that go unaddressed.Footnote 167 Of course, there are nuanced geopolitical dynamics within institutions and specific areas of activity that problematize sweeping claims about binary power. The case of human rights-climate activism justly illustrates how lawyering practices may at least result in ambivalent consequences. From the small narrative presented here, activist lawyers appear to have come from or are closely allied with diverse places and institutions. These lawyers seek to embed human rights in diplomatic negotiations and finance schemes to prevent and redress harms that local people experience. However, to the extent that lawyering techniques ameliorate, and therefore maintain, practices with contested structural effects, such as North-South project finance, lawyering is concurrently transformative and reifying.Footnote 168
3.2 Diverging ethical commitments
A second manner in which lawyers reproduce heterogeneity and homogeneity in their field and community is through shared yet uneven ethical commitments. International climate law is often said to be caught between rationalities of environmental protection, economy, and justice. Most legal professionals working in the field are dedicated to tackling environmental protection legally. They may diverge, however, over ethical commitments to economy and justice when deciding the means to pursue their overarching commitment in day-to-day activities.
Recall that human rights activists know who the likeminded lawyers are and organize gatherings to strategize among themselves on the sidelines of the UN climate regime. Activists are far removed from the mega firms of speculators, or ‘climate capitalists’, who parachuted into the field, then left when the carbon market cooled off.Footnote 169 International climate lawyers run in separate circles because they adhere to an ethic that colours how they perceive themselves, the world, and the law. In turn, they enact idiosyncratic practices in places where they accomplish rationalities aligned with their ethical predilections.
Needless to say, economy and justice evoke different understandings that may be congruent or antithetical. The intergovernmental negotiating committee drafted the Convention on the heels of calls for redistributive economic policies and institutions for a New International Economic Order, which were rendered into norms in the UN climate regime for conditional North-South finance and an (ever shifting) sharing of geopolitical burdens to reduce emissions.Footnote 170 The CDM is also a tempered version of a radical proposal that Brazil made in the run up to Kyoto, which would have reallocated economic penalties garnished from non-compliant parties in the North to the South.Footnote 171 A commitment to economy in the field of international climate law thus has open potential to mean different things, but it has roughly settled on the Kyoto Protocol’s rationality of efficiency, freedom of choice, lowest possible costs, and the liminal concept of sustainable development.Footnote 172
This article explored how lawyers operationalized these understandings through market finance and official development assistance when they represented COP delegations, made submissions to the CDM governing body, and counselled the World Bank. The range of lawyers participating in these endeavours suggests that notions of justice are equally changeable and bound up in definitions of economy. Justice in international climate law alternately means correcting disparities between North and South, safeguarding people from laggard states, and fixing the symptoms of these pathologies appearing in detailed rules. Activist lawyers as well as those serving delegations in the UN climate regime advance these notions of justice when they seek compensation from states and corporations most responsible for damage, procedural fairness, and stronger ambition, sometimes using human rights discourse. Nonetheless, just as rationalities of economy and justice are imbricated in the international climate law field, as mentioned before, human rights and other lawyers who prioritize justice engage with ruling economic doctrines, practices and institutions, which they help legitimize and reproduce. Ethical commitments to economy and justice may therefore be passionate, but they tend to work by degree.
3.3 Accomplishing plural legal forms
Finally, mapping the everyday practices of international climate law reveals that lawyers operating in the field share knowledge, skills and resources, while they separately accomplish plural legal forms. Lawyers have some basic competence dealing with the law, for example, drafting text, and being aware of, interpreting, and applying legal instruments. But multivalent legal forms proliferate unevenly across sites of governance: any single locality contains overlapping treaties, directives, policies, decisions, vocabularies, and techniques that lawyers and non-lawyers reproduce. Lawyers further deepen this complexity when they address matters that are perceived to have attributes that are exceptionally ‘legal’ or to benefit specifically from professional capital.
The UN climate regime is the clearest example. Again, perhaps all international climate lawyers share knowledge about and refer to the UN climate regime’s doctrines. They are not, however, equally familiar with the self-referential and layered rulemaking of the treaty-based regime. The UN climate regime is imbued with a culture of legality that values custom and treaties in addition to fluid legal reasoning, which binds diplomatic negotiations to rules that conceivably promote quicker lawmaking and international co-operation. In this context, where everyone argues through law, lawyers guard the regime from the potential for unruliness when they uphold idiosyncratic understandings of law equated with textual rigour and procedural constraint.
Lawyers affiliated with external institutions, such as the World Bank, law firms, and public advocacy centres, discharge similar functions when they ‘split’ professional roles to represent or lobby states. But outside the regime, proficient lawyering is tangential. Activist lawyers are technicians and campaigners who provoke a convergence between ‘universal’ human rights and international climate law. Human rights activists occupy a place of ‘betweenness’ from where they perform boomerang strategies, vernacularize rights in domestic courts, and expose local cases globally. In the attempt to tie seemingly remote branches of international law together, lawyers occupy this same place and enhance campaigns by reframing technical legal sources and doctrines.
Transactional lawyers leverage different jurisdictions as well, suggesting a common aptitude for creative lawyering among professionals in the field. On the other hand, lawyering for the World Bank takes managerial forms said to fit with the Bank’s constituent instrument. These include operational directives, direct lending agreements, and market-based ERPAs, which expanded to match the Bank’s mandate of active environmental governance. Specific terms in model contracts for arbitration, conditional payments, and ‘additionality’ require distinctive creativity: the transactional imaginary is concentrated in micro-level terms that depoliticize the interests and bargaining power of the Bank, buyers, and sellers in sequestered forms of confidential regulation. Human rights lawyers would not be expected to manage these flat, bricolage techniques, nor would transactional lawyers be expected to rally a civil network. Instead, international climate lawyers discipline markets, regimes, international organizations, and courts through endless configurations of legal form, effecting arcane law work with a modicum of professionalized competence and reciprocity.
4. Everyday international (climate) law practices
What is at stake in theorizing international climate law through everyday practices? My claims about lawyering in the field offer second order reflections for the practice of international law scholarship. I mentioned at the beginning of this article that scholars have been systematizing rules and institutions to scope a discipline. The irony of this pursuit is that scholars classify and analyse international climate law, while generally agreeing it transcends coherence.Footnote 173 Their assessment began in the mid-2000s with analogies to international law’s ‘fragmentation’, borrowing from the International Law Commission’s report on the topic.Footnote 174 The scholarship grew to consider plays on fragmentation involving ‘regime interactions’, ‘multilevel governance’, and ‘transnational climate law’ often with attention to a purported lack of hierarchy.Footnote 175 The focus in this article on multiple sites of governance is, therefore, not novel. Rather, I suggest that the proliferation of international climate law is purposive and effectively reifies extant rationalities, institutions and power in the broader field of international law.
The ample scholarship on international climate law’s complex normative and institutional landscape invites us to decentre assumptions about the sources, content and qualities of law. Emerging disciplinary re-classifications of law ‘beyond the state’ thus aggregate varied legal forms around different territorial jurisdictions and institutions. However, with rare exceptions, they do so without interrogating the mundane practices in newly taken-for-granted configurations that make and remake the law. Perhaps as a result, scholars also tend to represent the proliferation of international climate law as something that has ‘happened’ – a structural inevitability that mirrors sources of emissions or an ineluctable consequence of history, following bleak multilateral pledges and US disengagement, when I propose that everyday practices obtain the law’s diversity.
There is no unified theory of international law practices, rather an orientation toward reflexive and engaged scholarship that explores what people and materials do, and have done, to effect law in patterned activities of daily life. International law scholars have long called for this mode of praxis which, above all, adopts a descriptive style to capture how law is made and remade in plain view. This, Anne Orford restates as the attempt ‘to make visible precisely what is visible’ and ‘to arrange what we have known’.Footnote 176
Relevant insights from critical legal theory, Third World Approaches to International Law, actor-network theory, constructivist, Bourdieusian, and other approaches that describe everyday practices are distinct, sometimes clashing.Footnote 177 Their tensions notwithstanding, beyond a preference for description, scholars concerned with practices arguably share generic commitments. For example, turning to practices means rallying around the notion that international law does not follow a linear progression toward fragmentation or improvement; nor are its structures fixed. Historical and structuralist narratives of international law are congruent with a practice-orientation when they ‘arrange’ situated choices over trajectories of time and place.Footnote 178 Hence, practice scholars refuse to essentialize international law’s latest components (be they state-centric or not) and its stasis or teleological development. However, they refrain from discounting the force of structural inequalities and the contingency of ideational pursuits.
International law, as a practice, is at base a performance with epistemic and material conditions.Footnote 179 Practices are fuelled by dispositions that are ‘intentional and unintentional’ and coloured by relatively shared experiences of the world.Footnote 180 While aspirations are therefore basic to action, they are grounded in the small places where people create and live out the law and, as such, are qualified by material existence. Documents, bodies, sustenance, and information technologies moderate our predilections and trouble the tidy stories of causal and doctrinal accounts.Footnote 181 In turn, international law concepts of sovereignty, human rights, common concern, and sustainable development approximate the characteristics and routines of the material world, which are then partially reconstituted by our presumed ability to ‘shape and control’ nature.Footnote 182
Practice-oriented scholars thus refuse to succumb to oppositions between the ideational and material and similar oppositions between stability and change, the international and national, structure and agency, and the natural and positive, to name a few. Analytic dichotomies serve disciplinary claims to relevance, are fictitious or, at best, are mediated by the unfolding of practices – a constant, generative process wherein binaries are mutually produced.Footnote 183 While this kind of transgression might descend into conceptual flatness, international law is not everything and nothing.Footnote 184 It is recursive, banal, messy, personal, and reifying of longstanding and consequential power imbalances, yet fundamentally open to struggle and change. And, for the scholar of international law, collapsing the divide between practice and theory entails a critical distancing and return to intimacy, a yielding to the openness praxis.Footnote 185
This article has sought to reimagine international climate law in a critical mode that describes a field of complex, situated practices through which lawyers help reproduce and resist the law. Extending our sights across the field, we can visualize the law’s already visible operation in institutions that scholars have been cataloguing for a discipline. Among them are the very same bureaucracies and networks whose practices are more studied for their imbrication with other fields: official development assistance agencies, UN Environment, multilateral banks, the Food and Agriculture Organization, the UN Development Programme, and environmental and trade regimes, for example. If international climate law gives rise to and underlies instruments and techniques within these localities, there are people and materials caught up the process.
This purposive quality of practices troubles assumptions that international law relating to climate change is automatically ‘mainstreamed’. Raising the climate as a special issue for the UN system and framing it as a common concern of global scale – implicating the North and South and presuming the commensurability of emissions wherever and however they occur – cannot be detached from Malta’s initiative, stretching back to its prior elaboration of the common heritage principle. Nor can terms of payment for CDM projects and snowballing model contracts be isolated from lawyers designing ERPAs for the World Bank. The preambular reference to human rights in the Paris Agreement, now being cited in transnational litigation, equally would not have crystallized without the Human Rights and Climate Change Working Group.
It also follows from the purposive nature of international climate law that its proliferation is anything but neutral. International climate lawyers sought out and propagated their trade by tweaking practices aligned with the demands of places where they worked. Whether they oversaw the rules of diplomatic conferencing, drafted commercial agreements, or transported human rights to and from the UN human rights system, lawyers breathed new life into prevailing institutions of international law. In doing so, they sustained the driving rationalities of liberal institutionalism, economic efficiency, and the universalism of human rights, along with legal concepts of nature that manifest in the distribution of benefits and burdens among peoples.
To summarize, the corollary of my proposition that international climate lawyers help reproduce similarities and differences in their field and community is that they reify analogous traits in the broader field of international law: institutional and geopolitical cores and peripheries, ethical commitments, and multivalent international law practices. Climate change may be ‘legally disruptive’, as scholars contend, or it may well justify renewed faith in longstanding institutions.Footnote 186 Either way, as the discipline matures, and as international lawyers respond to the climate ‘crisis’, being sensitive to agency, historical contingency, and the structural effects of everyday practices may complement discussions about assimilating international climate law into facets of governance and the desire for continuity.
