University of Pennsylvania Journal of International Law
William Boyd, Climate Change, Fragmentation, and the Challenges of Global Environmental Law: Elements of a Post-Copenhagen Assemblage, 32 U. Pa. J. Int'l L. 457 (2010), available at http://scholar.law.colorado.edu/articles/205.
The 2009 United Nations climate conference in Copenhagen has been widely viewed as a failure -a referendum in the eyes of many on the top-down, comprehensive approach to climate governance embodied in the Kyoto Protocol and carried forward in efforts to negotiate a successor regime. Despite a modest agreement on future work toward a new agreement, the most recent climate meeting in Cancún, Mexico reinforces this view, underscoring the conclusion that Copenhagen represents an important inflection point for international climate policy. Although much of the post-Copenhagen commentary has correctly identified various problems, even fatal flaws, with the process, very little has been particularly helpful in marking out a constructive way forward. This Article takes some steps in that direction, offering a partial re-conceptualization of the nature and possibilities of global climate governance in the post-Copenhagen era. It starts from the premise that any realistic approach to climate governance must begin with the facts of globalization, legal pluralism, and fragmentation rather than the view that climate change is a particular kind of global problem that can only be solved through a top-down, supra-national regime aimed at managing the Earth system. As argued here, this "Earth systems governance" approach to the climate change problem, which derives from radically enhanced scientific and technical ways of understanding global environmental change and a particularly narrow view of collective action, has become deeply embedded as a basic objective of climate policy. The resulting logic of global environmental managerialism, however, is very much at odds with the plural, fragmented nature of the international legal and political order - a fact well illustrated by the limited results coming out of the recent climate meetings in Copenhagen and Cancún as well as the near total disarray that marks the current climate policy discourse in the United States and other major emitting countries. In contrast, an alternative, post-Copenhagen approach to the problem of climate governance that starts with the facts of globalization and its implications for law and legal order trains attention to new and different, and much messier, ways of coordinating efforts across jurisdictions and building enabling environments for collective action. This Article maps several key elements of post-Copenhagen climate governance through an analysis of efforts to bring reduced emissions from deforestation and forest degradation ("REDD") into climate policy. Although deforestation, nearly all of which occurs in the tropics, accounts for some fifteen percent of global carbon dioxide emissions, it has only recently become a major focus of climate policy, emerging as one of the few areas of consensus in the international climate negotiations. As a new paradigm for land use that implicates multiple legal and institutional orders at multiple levels, the REDD experience illustrates both the opportunities and the challenges of constructing climate governance through the complex articulation between distinctively global projects and particular national and sub-national institutions. Approaching climate governance from this perspective provides a basis for some more general claims regarding the possibilities of global environmental law in the context of a plural, fragmented international legal order.
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