Unlike many analyses of the climate change regime which are based on international law, international relations or economics, Friedrich Soltau's book approaches climate change from the point of view of fairness and equity between developed and developing countries. Premised on the reliability of current climate science, Soltau seeks to identify elements of a “working consensus” on fairness principles which, he argues, could be used to solve the hitherto intractable problem of assigning responsibility for climate change. This is an ambitious project and while the book raises interesting law and policy issues, its focus is mitigation of, not adaptation to, climate change and it relies particularly heavily on analysis of international negotiations of the period 1998 to 2008.
Central to all UN and other climate negotiations since the early 1990s has been dispute over the means by which nations should allocate the cost of adopting mitigation and adaptation measures to address climate change. Estimates of the cost vary considerably but it is clear that significant investment will be required if effective measures are to be adopted globally and entire industries (in particular, energy) will have to undergo massive and rapid systemic change, with consequential economic impacts. Consequently, at stake in climate negotiations is not simply analysis of principles of international environmental law but unravelling and reconstructing the complex web of all anthropogenic activity. That unravelling may require more than discussion of theoretical aspects of fairness, distributive justice, economics, technology transfer and funding mechanisms which Soltau offers. Nonetheless, this book is a useful contribution to the debate as it approaches the climate issue from an unusual angle.
Taking as its starting points two assertions, that global climate change dispenses with the illusion that human impact on the climate is confined to the local and can be treated as such, and that our relationship to, and conception of, nature must be re-evaluated, the book argues that climate change is relevant to development and poverty alleviation and is likely to aggravate existing distributional inequalities.
The first few chapters, which are underpinned by extensive references to earlier scholarship, are largely descriptive. Chapter 1 introduces the concept of fairness in the context of climate change, chapter 2 provides an overview of the science of climate change, based largely on the findings of the Intergovernmental Panel on Climate Change and chapter 3 discusses the development of the international climate change regime, the 1992 United Nations Framework Convention on Climate Change (UNFCC) and its 1997 Kyoto Protocol, the Protocol's three mechanisms (emissions trading, clean development mechanism and joint implementation) and eleven meetings of the Conference of the Parties (to UNFCC).
The equitable sharing of the mitigation and adaptation burden is a prominent feature of UNFCC but that Convention provides little more than a framework and subsequent climate negotiations have struggled to align the legitimate desire of developing states for economic development with the ambitious plans for emissions reduction. Soltau's description of the historical context in which the climate negotiations of the late twentieth and early twenty first centuries took place are carefully researched but overall, these chapters are somewhat dry and their conclusion, that the direction and shape of the next phase of climate negotiations remain to be determined, is self-evident.
It is in the second part of the book that the legal analysis begins. In Chapter 4, Soltau maps out theoretical approaches to fairness, under headings which include philosophical roots, distributive justice, and economics. In fact, much work has already been undertaken on fairness in international law and equity in international environmental law. Seminal works include the Brundtland Report, Our Common Future (Oxford 1987), Brown Weiss In Fairness to Future Generations: International Law, Common Patrimony and Intergenerational Equity (New York 1988), Rajamani Differential Treatment in International Environmental Law (Oxford 2006) and Franck Fairness in International Law and Institutions (Oxford 1998). Soltau does not define fairness and as he acknowledges, the fairness principles which he discusses are not legal in nature but may be used to interpret principles of international environmental law, such as the principles of common but differentiated responsibility and equitable utilisation. There is, however, considerable divergence among scholars as to the status of principles of international environmental law, with many scholars recognising, albeit implicitly, that such principles are still at the embryonic stage. Chapter 4 concludes that the “principles” of egalitarianism, responsibility, need and capability may be applied in the evaluation, on fairness grounds, of proposals for a post-2012 climate agreement. Given the chequered history of climate negotiations, this is an ambitious suggestion: it is not clear by whom such an evaluation might be undertaken, for what purpose and what the possible outcomes might be.
Chapter 5 is more practical. Underpinned by relatively well established definitions of common but differentiated responsibility, it discusses the transfer of technology and financial assistance as examples of fairness in burden-sharing. In her 2006 book, Rajamani divides differential treatment in international environmental agreements into three straightforward categories: (i) provisions which differentiate between developed and developing countries with respect to the central obligation of the instrument in question, (ii) differentiation in implementation of obligations such as the phasing of CFC eradication under the 1987 Montreal Protocol and (iii) the granting of assistance in the form of capacity building, financial resources and transfer of technology. Soltau's categorisation of fairness is more complex and while the examples he provides (e.g. World Bank Clean Investment Funds) are interesting, it is difficult to identify their relevance to his central argument. The chapter concludes by suggesting that the general trend towards market-based solutions will continue and that in a future climate change agreement, consideration should be given to strengthening provisions related to research, development and deployment of cleaner technology.
Next, Soltau discusses a range of policy criteria (including environmental effectiveness, cost effectiveness and institutional design) for assessing climate change proposals, assesses selected proposals in the light of fairness principles and argues that proposals which seek to reflect both a balance of fairness principles (responsibility, capability and need) and political and economic realities stand the best chance of being implemented by both developed and developing nations. Like most international environmental obligations, such solutions are likely to be compromises, brokered by negotiators worn down by years of largely futile negotiations and under pressure to being home to their respective governments an agreement which offers a semblance of hope, even if such hope subsequently proves to be illusionary.
Climate change is, as Soltau concludes, “an enormously complex, multidimensional problem that mixes together science, law, economics, technological advancement … security interests” so it is unlikely that any silver bullet which does emerge will be located within one discipline. Nonetheless, serious engagement with fairness is, according to Soltau, worthwhile for three reasons. First, fairness features prominently in public discourse about climate change; second, technical analyses can guide, but not determine, policy options and third, resolution of climate change will involve apportioning between nations the burdens and benefits of adaptation and mitigation. This, Soltau suggests, will help to nurture a “real sense of community” in which we can “meaningfully articulate our responsibilities for a common future”. In fact, the discourse of international environmental law abounds with laudable aspiration but beneath the surface lies a plethora of ineffective agreements.
Soltau has produced a detailed analysis of fairness in the climate change regime but the path forward for the regime itself is not clear. Fairness could indeed offer an alternative approach to climate negotiations but given the voluntary nature of international obligations, it is difficult to see how international law can offer a comprehensive solution to the climate change. Nevertheless, international negotiations continue: at the most recent UN Climate Change Conference in Cancún, Mexico, in December 2010, a new package of decisions, dubbed the Cancún Agreements, the aim of which is to enable countries to move more firmly towards a low-emissions future and to support enhanced action on climate change in the developing world, was agreed. The subsequent UN press release quotes UNFCC Executive Secretary, Christina Figueres: “Cancún has done its job. The beacon of hope has been reignited and faith in the multilateral climate change process to deliver results has been restored.” If the Cancún Agreements are to be effective, an abundance of political commitment and financial resources, both of which were sorely lacking from earlier climate agreements, will be required. It is premature to comment on whether these will be forthcoming.
