Authors Note: Brian Seavitt is a graduate student at New York University, studying environment and energy policy. His interests are sustainable development and environmental finance. He can be reached at bts275@nyu.edu.
Introduction
In recent history, most of the models for economic development have been aimed at providing the most amount of electricity at the cheapest price per kilowatt-hour. However, the cheap price we pay for electricity does not account for externalities or the external implicit costs of the energy we produce — namely greenhouse gases (GHG). The planet has, instead, picked up the tab, attempting to absorb these social costs. But evidence proves that ecosystems are not able to sustain the excessive amount of degradation that anthropogenic climate change causes. To correct this market failure, the negative externalities produced by different energy methods need to be accounted for so that human behavior acts to preserve the environment (Greenstone and Looney, 2012, 11).
The case can be made that further large-scale greenhouse gas (GHG) emissions violate customary international law. Therefore, in order to protect human rights, the Responsibility to Protect (R2P) can be used as a mechanism to ensure that each country’s external costs of energy production are accounted for. R2P is a growing “political concept” within the United Nations that enables the international community to enforce peremptory laws (jus cogens). Since the impacts of climate change are proving to be a clear and present danger to so many people, R2P is ripe to be applied to climate change.
Although the international community traditionally aims to use R2P as a basis for military intervention, the concept should also be applied to climate change policy. By using R2P as an enforcement mechanism to account for the social costs of a country’s products, the free-market will drive the production of energy savings technologies and practices in a revolutionary way.
The world has been transitioning from commercial primary energies, such as oil and coal, to non-commercial primary energies, such as solar and wind energies. However, the pace of this transition is slow – much too slow to prevent catastrophic climate change. In fact, the change in energy use may be very limited even in the future; according to a report by the U.S. Energy Information Administration: “[Fossil fuels] will continue to supply more than three-fourths of total world energy consumption in 2040” (2013, 11). Today, fossil fuels account for approximately 80 percent of world energy consumption.
The Kyoto Protocol is one of the few multi-party GHG mitigation schemes in the world. However, even this treaty is not ambitious enough to effectively curb climate change. At the Seventeenth Conference of the Parties (COP 17) to the United Nations Framework Convention on Climate Change (UNFCCC) an extension of the Kyoto agreement was determined to last from 2013 to 2020. Negotiations are set to take place in 2015 to develop a new international climate change treaty.
However, even if an effective emissions reduction system is adopted in 2015, these legally binding targets are not slated to come into force until 2020. The international community can use R2P to reduce emissions in this time.
It is more effective to address climate change sooner than later for two reasons: first, the preventative costs mitigating the effects of climate change are multiplied when they are appropriated to a problem retroactively, and second, the threat of a ‘tipping point’ is approaching at an accelerating pace. In such a case, the buildup of greenhouse gases could lead to runaway warming, which would result in an increase of floods, drought, storms, diseases, and a possible permanent loss of world income of five to twenty percent per year (Buchan, 2010, viii).
While the world waits for the Intergovernmental Panel on Climate Change’s (IPCC) Fifth Assessment Report to be finalized over the next year, it will only serve to reinforce what we already know: a continuation of human-induced climate change leads to catastrophic damages of the environment.
Therefore, the international community should not wait to analyze the full severity of these impacts, but rather, act now. Using R2P to intervene on behalf of climate change will legitimize this generation’s duty to protect future generations.
State Responsibility and International Responsibility to Protect
In 1999, UN Secretary General Kofi Annan summarized the need for new approaches to the evolving challenge of humanitarian intervention. While the UN Charter lists one of the foremost principles of international law as ‘the inviolability of territorial sovereignty’, it seems unthinkable for the international community to stand by and watch “insufferable atrocities” taking place (Newman, 2002, 102).
Philosophers and political scientists had been developing a resolution to this paradox throughout the 1990s. During this time, they were able to shift the focus of the sovereignty debate from state security to human security (Evans, 2009, 9). Consistent with the Nuremberg Charter, sovereignty was not interpreted to be absolute – it was not a license to kill. This interpretation allowed for the concept of sovereignty to be viewed, “not just as protection from outside interference [as it had been] – rather, as a matter of States having positive responsibilities for the welfare of its citizens” (Evans, 2009, 9). The debate was turned on its head: “this reframed the argument so that it was not about the right to intervene, but about the responsibility to protect” (Evans, 2009, 9).
The Canadian government used this novel idea to respond to Secretary Annan’s inquest; they developed the International Commission on Intervention and State Sovereignty (ICISS). In 2001, the Commission released its Report arguing: “That sovereign states have a responsibility to protect their own citizens from avoidable catastrophe, but when they are unwilling or unable to do so, that the responsibility must be borne by the broader community of states” (Dunoff, Ratner, and Wippman, 2010, 903).
The language of R2P attained world recognition in 2005, when the concept of R2P, specifically described in paragraphs 138 and 139 of UN Resolution 60/1, was adopted by the General Assembly at the World Summit Outcome.
The International Court of Justice acknowledges international law is not static; norms are created both through action (state practice) and statements showing repeated state practice motivated by a sense of obligation (opinio juris) (Eaton, 2011, 767). In this way, state practice can become an international norm rather than exceptional behavior.
R2P is therefore, suited to apply to climate change as measures to mitigate climate change meet the qualification criteria necessary for these actions to be considered international norms. They are: A) State practice to prevent environmental damages that harm people in other nations has been consistent for over 70 years (see for example, Trail Smelter, 1935; Stockholm Declaration, 1972; Rio Declaration, 1992; Rio+20 Summit, 2012). B) Actions to prevent climate change should be obligatory because scientific evidence has proven that the threat of a changing climate and its harmful consequences are valid and on a scale worse than mankind has ever seen (see for example, Ostro et al., 2006; Church et al., 2001; Meehl et al. 2007, Vermeer et al., 2009). In keeping with the principle of common, but differentiated responsibilities, R2P should work together with the UNFCCC to apply social costs to international trade law.
The Solution
The social costs of energy consumption have been exploited throughout history. The prolonged lack of consideration for negative externalities is now beginning to reveal the true disadvantages of these to our systems — namely, the climate system, public health, the economies of nations, and standards of living (Hewitt, 2013, 52).
However, resistant ‘business-as-usual’ policies continue to predominate humanity’s long-term interests. To remedy this inconsistency, a variety of public initiatives can and must be legally enforced to steer the private sector towards meeting long-term energy service needs while maximizing social and economic benefits (Gellar, 2003, 172).
The World Trade Organization (WTO) is one way the international community is able to force the internalization of these costs; by imposing carbon offsetting duties to the products each multi-national corporation sells, businesses would seek out and produce lower emission energy sources (Stiglitz, 2006, 179). This would further drive countries to develop and provide low emission energy sources to attract international investment, creating a race to the bottom in low emission energy demand.
However, in order to effectively shift behavior and enforce these duties, a reformation of the World Trade Organization (WTO) will need to take place in order to bring accountability to member states actions. Author of The World Trade Organization Amrita Narlikar explains: “At the heart of the WTO lies a major and unsustainable discrepancy: extreme legalization, in the enforcement of the rules…and an inordinate reliance on de facto improvisation in the making of those rules” (2005, 42).
In response to the inconsistencies inherent in the WTO, R2P can be used to ensure climate mitigation policies are enforced. The Dispute Settlement Understanding (DSU), which is the mechanism that provides guidelines for trade dispute settlements, should be backed by R2P so that dispute resolutions are enforceable in the same way an International Court of Justice ruling is enforceable. This would allow the market to drive our society towards adopting more clean energy practices.
R2P can also be used to mitigate climate change by prescribing mechanisms that preserve the planet. For example, the IPCC Fourth Assessment Report calls for the enhancement of forest sinks to act as natural carbon sequestration systems. This idea was pioneered by the Rainforest Initiative, which is a group of countries that aims to sell carbon offsets, not just for new forests, but for avoided deforestation. In effect, countries would be compensated for maintaining the enormous environmental benefits their rainforests embody. R2P could require the largest emitting nations to help pay for the protection of forests through non-profit companies and initiatives, such as the Rainforest Alliance and REDD+.
Conclusion
Climate change remains one of the bodies of international law that is consent based. As a result, most countries view climate change legislation merely as a game of prisoner’s dilemma, where it is in the long-term interest of each country to impose restrictions on emissions, but the short-term gains of non-conformity render the opportunity cost of compliance enormous. The priorities of climate change negotiations can therefore be summarized as: a battle for economic and political positioning.
The economic and political influences are overwhelming. Indeed, a large part of the reason legislation has not been enforced is because “the exploitation of energy sources is a key driver of economic development and quality of life” (Greenstone and Looney, 2012, 12).
If the international community continues to ‘play chicken’ in the face of climate change, the entire world population is going to ride off the cliff together. As explained by environmental author and scientist Jared Diamond:
…because we are advancing along this non-sustainable course, the world’s environmental problems will get resolved in one way or another, within the lifetimes of the children and young adults alive today. The only question is whether they will become resolved in pleasant ways of our own choice, or in unpleasant ways not of our choice, such as warfare, genocide, starvation, disease epidemics, and collapses of societies (2005, 498).
The remedy requires a shift in focus: long-term interests should trump short-term interests. In line with the language of the Report on the Responsibility to Protect, in the event States are unwilling or unable to fulfill this shift in focus, the responsibility must be borne by the international community and their agencies.
Bibliography
Buchan, David. The Rough Guide to the Energy Crisis. London: Penguin, 2010. Print
Diamond, Jared. Collapse. New York: Viking Penguin, 2005. Print
Dunoff, Jeffery L.; Ratner, Steven R., Wippman, David. International Law: Norms, Actors, Process: A Problem-Oriented Approach. New York: Aspen. 2010. Print
Eaton, Jonah. “An Emerging Norm? Determining the Meaning and Legal Status of the Responsibility to Protect.” Michigan Journal of International Law. 2011. 32 (4): 765-804. Print
Energy International Outlook 2013.” U.S. Energy Information Administration. Washington: Office of Energy Analysis. July, 2013. Print
Evans, Gareth. “The responsibility to protect: ending mass atrocity crimes once and for all.” Irish Studies in International Affairs 20, no. 1 (2009): 7-13. Print
Gellar, Howard. Energy Revolution: Policies for a Sustainable Future. Washington: Island Press, 2003. Print
Greenstone, Michael; Looney, Adam. Paying Too Much for Energy? The True Costs of Our Energy Choices. Daedalus: The Journal of the Academy of Arts and Sciences. 2012. Print
Narlikar, Amrita. The World Trade Organization: A Very Short Introduction. New York: Oxford University Press. 2005. Print
Newman, Edward. “Review Article-Humanitarian Intervention Legality and Legitimacy.” The International Journal of Human Rights 6, no. 4 (2002): 102-120. Print
Stiglitz, Jospeh E. Making Globalization Work. New York: W.W. Norton & Company, 2006. Print