If our work is future-oriented, problem-solving, and global in scope, we are all climate lawyers now. But, beyond widening the epistemic circle of climate lawyers, we must understand two things. First, the reach of climate change law into so many areas of international law requires an understanding of how these laws fit together—clashing, supporting, side-stepping, deferring, pulling rank. Second, we need to constantly ask how they should fit together, and for which beneficiaries. From the perspective of the fragmentation of international law,Footnote 1 trade lawyers, environmental lawyers, and human rights lawyers can be said to be climate lawyers now, but convergence is neither the best explanation nor the best normative guidepost. We should strategically embrace law making and adjudication everywhere, but be conscious that our attention might be diverted to particular functional ends when issues of mitigation or adaptation are framed to suit the structural biases or vocabularies of particular regimes.
I. Trade Lawyers Are Climate Lawyers
Let me start with the trade lawyers. We have long known about the clashes when trade measures seek regulatory objectives including environmental protection. A typical example of such a clash, met with the exception type approach, may well emerge if the European Union's border carbon adjustments, likely to be imposed on countries with weak climate laws, are challenged at the World Trade Organization (WTO).Footnote 2
But, there is a new sensibility that places climate as a foundational regulatory objective for all trade flows, including in energy, agriculture, building, transport, and so on, rather than a peripheral exception. Current free trade agreement negotiations from countries like the post-Brexit United Kingdom need to center their objective of reducing the carbon footprint of their imports. We might observe that convergence is at work in President Biden's latest call for the elimination of fossil fuel subsidies, which currently distort downward the market prices for oil, gas, and coal.Footnote 3
Looking closer, there is perhaps something more subtle going on, especially regarding the interaction between regimes. Fossil fuel subsidy reform shows the importance of interaction between the trade regime and others. Just as negotiations to clarify disciplines on fisheries subsidies at the WTO have had to dwell heavily on who gets to designate subsidies as “good” or “bad,” there will be discord about which subsidies should be targeted—there is a bias, for example, toward consumption rather than production subsidies in reform proposals, as my work on energy transitions has shown.Footnote 4 We can also expect new rules to require the sharing of expertise, competence, and authority between international organizations, even though these organizations do not enjoy universal membership by states. Legitimacy in regime interaction will flow from deliberative processes, rather than direct state consent. And, we must ask fundamental questions about which actors—states, international organizations, non-governmental organizations, fossil fuel companies—should be involved in establishing market conditions for energy security.
II. Environmental Lawyers Are Climate Lawyers
It seems obvious to point out that environmental lawyers are climate lawyers. But climate lawyers have long been preoccupied with demand-side policies—like carbon trading—which are most often connected to the Paris goals of a 1.5 or 2 degree Celsius limit to global warming,Footnote 5 and a net zero of greenhouse gas emissions by 2050.Footnote 6 While reducing the demand for fossil fuels is profoundly important, environmental lawyers can help focus on reducing the supply, especially in addressing the imperative to “keep carbon in the ground.” For example, the obligation to prevent transboundary harm has long been confirmed as customary international law, and abolitionist policies have developed to restrict the supply of hazardous wastes and pollutants. International law relating to the environment has also shaped due diligence obligations connecting states with the activities of their domiciled corporations, as was done in the Pulp Mills caseFootnote 7 at the International Court of Justice and the IUU Advisory Opinion of the International Tribunal for the Law of the Sea.Footnote 8
How do international environmental laws fit with the rest of public international law? Regime interaction alerts us to asymmetries in institutional power and influence, such as the lack of compulsory dispute settlement for transboundary environmental problems. International courts are limited in their capacity to articulate and apply principles of responsibility.
The relative weakness of international environmental law is one reason to support the Global Pact for the Environment, which has been endorsed by France and other countries as a new environmental treaty. Its proposed right of every person “to live in an ecologically sound environment adequate for their health, well-being, dignity, culture and fulfilment”Footnote 9 promises to enhance implementation and enforcement. This promise can be delivered at the level of international law but also, depending on national constitutional and institutional context, via domestic litigation.
III. Human Rights Lawyers Are Climate Lawyers
This brings me to my third example of apparent convergence but more than convergence—human rights lawyers as climate lawyers. Human rights claims can bring pressure on states to mitigate climate change. My favorite example of this is the current complaint to the Human Rights Committee by Australian first nations people alleging their International Covenant on Civil and Political Rights rights are violated by Australia's weak climate response.
Yet the disjunctures between human rights and climate law also spotlight the need for any climate mitigation to be advanced with regard to underlying inequalities and impacts. In our work on “reducing emissions from deforestation and forest degradation”—or REDD+—my colleagues Maureen Tehan, Lee Godden, Kirsty Gover, and I found that climate change mitigation has disparate impacts on Indigenous and Forest Communities.Footnote 10 REDD+ policies promoting carbon sequestration risk displacing the very people who have made the least contribution to the problem of climate change. We show how the risk differs depending on the local context of REDD+ implementation, the quality of free prior and informed consent, the protection of rights, the access to benefits, and the policies of the international funding institutions. Efforts by states to draw on existing environmental and human rights regimes, including through decisions of Conferences of the Parties to the UN Framework Convention on Climate Change, show state consent to be less important than other factors providing legitimacy and accountability to regime interaction.
To conclude: yes, it is insufficient to identify climate law from a five-word proximity search of the acronym GHGs. Different areas of legal specialization are involved—including, but not limited to, trade, environmental law, and human rights, and we need to work to understand how norms and legal orders fit together. We also need to continue to ask how these legal orders should fit together, united as we are by the global problem, but highly inequal, both within and between states, in our contributions and capacities to deal with it. Traditionally, convergence approaches have identified possible mergers of different substantive areas, or different procedures, within international law, charting both international-domestic alignment, or international-international. But fragmentation approaches have identified both convergences, divergences, and something more subtle—an enlargement of different aims or goals in one area, or a displacement of contradictory values in another. The new approaches to climate law call for a close charting of these trends. For climate lawyers, the search for a polity and morality that can more systematically guide global relations is ongoing.
