The Climate is Warming. International Law is On Thin Ice.

By Sam Meyerhoff

Of all the problems that face the world today, none is more dangerous than climate change. It has the potential to wipe out our species, yet for all our focus on its effect on our physical world, very little thought has been given to its effect on our institutions — specifically, the cornerstone of international law that is sovereignty.

Consider this: When the world’s largest polluters such as China, the USA, India, and Russia pump greenhouse gasses into the atmosphere, the entire world is affected. The actions of these countries (and indeed, all countries with a carbon positive footprint) cause our oceans to rise, our species to suffer and our economy to adapt. This is not to say that we don’t also have to take action against climate change, but it is notable that these other nations are directly influencing our country in a manner that one would imagine would be railed against if it were done directly.

Of course, some might say that to argue climate change as a threat to national sovereignty is merely to go looking for controversy. After all, does the rising of the oceans really stop New Zealand or any other country from participating in the global community of nations? It is true that when viewed in those terms, climate change is not much of a threat to national sovereignty, but I would argue that this is missing a very important part of the equation.

The notable scholar Robert Jackson divided sovereignty into two elements: positive and negative sovereignty. In his eyes, positive sovereignty is the power to act on the world stage whereas negative sovereignty is the freedom from others’ actions on the world stage. This creates a duality where a state’s capabilities form their positive power and their external recognition provides their negative power. Under this schema, it seems clear that while climate change might not affect our positive sovereignty, it most assuredly harms our negative sovereignty.

When the world’s largest polluters accelerate the rate of climate change, our waters rise, our species die and our world changes. If these countries were using military force to put our population in danger, there would be swift international condemnation and action. So why are things different when they use greenhouse gasses? There is one major concept closely tied to arguments put forward by those who believe that the act of polluting does not violate other countries’ sovereignty: The global commons.

The global commons are the parts of the world that are owned by every living human being. They trace their conceptual origin to the 1600s and the famed legal philosopher Hugo Grotius. Originally, Grotius came up with the concept to try and stop any one country from being able to claim ownership of the ocean or the atmosphere. From the start of the 20th century, our view of them changed. A movement arose to transition us from viewing them as property that we have the right to use to property regarding which we have both rights and corresponding duties.

Christopher Weeramantry, a former vice-president of the international court of justice and advocate of this new view, spoke at length about the commons in his separate opinion in the Hungary/Slovakia Gabčíkovo–Nagymaros case (known as the Danube dam case). He argued that the commons should be “respected as having a vitality of its own” and that “natural resources are not individually, but collectively, owned, and a principle of their use it that they should be used for the maximum service of people”. This is a powerful statement, yet it is just one argument in an ongoing debate, and many imply that the use of the commons should not be limited just because it might harm other countries’ sovereignty.

While few directly tie the use of the global commons to the issues of climate change and sovereignty, when world leaders talk about environmental regulations harming their sovereignty, this is to what they refer, even if not directly. These people allege that limiting countries’ property right regarding the global commons would be an even bigger infringement on sovereignty than any potential misuse of them. This harkens back to Grotius’ original work on the commons. Jose Suarez critiqued this older view of the commons, arguing that it was made “mainly to establish police measures and to ensure reciprocity and commerce, regardless of biological interests, which in this case are inseparable from economic and general interests”. This perfectly encapsulates the situation we currently find ourselves in. To argue that the sovereignty lost by limiting the use of the global commons is somehow worse than the sovereignty lost by other countries when the commons are destroyed ignores the fact that the latter will also lead to the former no matter what. When faced with this choice, we must go with the lesser of two evils and choose the most logical path of limiting the use of the commons. The old view of the commons was once sufficient, but this new problem warrants the new view espoused by Weeramantry and Suarez.

The world is in crisis. Oceans are rising, species are dying out, and things we once took for granted are vanishing. This is devastating in itself, but to pretend that climate change hasn’t also changed international law as we know it is to live in the past. Our previous understanding of sovereignty demands that we either acknowledge the way it is being violated, and in doing so redefine our view of the international legal system, or let our current system slowly be eroded into meaninglessness. Either of these two options are daunting, but it seems clear one is far better than the other. We cannot be passive, we cannot use the global commons as a half-hearted defence, and we cannot give in.

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