UofT Faculty of Law panellists address governance in a time of climate crisis

By Amanda Jerome

Law360 Canada (March 13, 2023, 9:27 AM EDT) -- Questioning the “rule of law and governance in times of crisis, including the challenges that climate change presents to some of the very conceptual foundations of law,” speakers at a University of Toronto conference dug into the role of international and national law, as well as the importance of Indigenous and community perspectives to address climate change.

The Law in a Changing World: The Climate Crisis conference, hosted by the Faculty of Law from March 2-3, tackled an important question in its first panel: in a time of climate crisis, who governs?

Jutta Brunnée, dean of the Faculty of Law, addressed the role of international law. She noted that the very basic question is: “What is the role of law in precarious times?”

Brunnée argued that, at “a very basic level, the role of law is to provide a measure of order, and predictability, and stability,” which “may be especially important in times like these.”

“But ultimately, I would suggest that law can only be stable over time if it also keeps pace with the need for change,” she said, noting that this leads to a more difficult question: “How should international law bring about change and what sort of change should it pursue?

“One might be inclined to say, ‘Well, it’s actually not really a good question, it has failed, because after all, current CO2 concentrations in the atmosphere are unprecedented.’ And by that, I mean, we have the highest concentrations of CO2 in the atmosphere in 800,000 years. And the steepest rise of these concentrations, and the steepest rise in emissions, has all occurred in the second half of the 20th century,” she added.

UofT panel(L-R) Jutta Brunnée, Edward Iacobucci, Michael Trebilcock and John Borrows address the question of who governs during a climate crisis at the University of Toronto’s Law in a Changing World: The Climate Crisis conference, held March 2-3.

Focusing on emissions specifically, Brunnée noted that the rise in emissions “hasn't been stopped, or let alone reversed, by the UN Climate Regime, which was launched more than 30 years ago in 1992 by the UN Framework Convention on Climate Change.”

“So back to my downer question, has international law failed?” she asked.

The dean’s response was a sobering thought: “It’s not the law that’s the problem, it’s us, because the law doesn’t operate in a vacuum.”

“I want to put to you, for better or for worse, that means that in the absence of strongly shared substantive values and goals, international law, and I suspect any law, is most likely to be able to furnish” procedural frameworks that “order interaction, that order decision-making, and that, if we’re lucky, creates space for communication and for us to work towards common ground and collective action,” she added.

Brunnée noted that there are “a great many ideas on how law must change to address the climate crisis and how it could help bring it under control,” such as imposing “stringent obligations so that we rapidly reduce emissions” as well as international law transcending its current focus on “state sovereignty” to instead focus on “the limits of what our planet can sustain.”

“As it stands,” she added, “we are mired in the complexities of the climate challenge.”

“We have trouble finding shared ground around ambitious climate action and what constitutes this sorely needed just transition to a post-carbon society, or even whether we should be trying for that at all,” she said, stressing that is not just an international problem.

Brunnée pointed to Canada’s debate on climate change, noting a state’s “differences, histories, outlooks, priorities, as well as starkly unequal capacities, and different contributions to the crisis and also exposure to its harmful effects” suggest that “shared understandings are even harder to come by.”

The dean then highlighted two points on what’s “happening in international law right now that might be at least somewhat encouraging.”

First, she said, “for better or for worse, state sovereignty is what remains the most widely shared and most deeply entrenched understanding in international society. And it’s so central in the international legal order that it is highly resistant to the development of norms that would constrain it, that would impose ambitious limitations, let alone transcend sovereignty.”

This “centrality of sovereignty,” she noted, is the one thing that “the global south and the north actually agree on.”

Therefore, if “normative revolution isn’t in the cards,” she said, there is the option to “work with the entrenched norm and to try and strengthen the constraints that are attached to it.”

She stressed that the “core norm of international environmental law” is “the idea that a state’s sovereign right to do as it pleases within its borders is limited by the obligation to prevent significant harm beyond its borders.”

In point two, Brunnée highlighted the Paris Agreement as not such a “bad deal.”

“The predecessor to the Paris Agreement, the Kyoto Protocol, imposed binding emission reduction commitments on its parties. The Paris Agreement only requires states to do something about their emissions and it requires them to be guided by the Agreement’s goal to keep temperature increases in certain boundaries and to be guided by the expectation, [and] that the ambition increases over time,” she explained, noting that the Paris Agreement, “in a way, requires states to make what is called ‘nationally determined contributions,’” which are “not binding under international law.”

Brunnée believes that this is “the only way that we can make things work.”

“That is, in part, demonstrated by the Kyoto Protocol, which ultimately didn’t work because none of the major emitters had emission reduction obligations under it,” she said, noting that the Paris Agreement is “a complete rethink.”

“We now have 195 states committed to doing at least something,” she added, stressing that the Paris Agreement “frees the renewal of commitments and increases and ambitions from the shackles of consent-based lawmaking that were part of the downfall of the Kyoto Protocol.”

“In other words, the Paris Agreement gives us a stable international framework of internationally agreed goals and principles and it requires everybody to do something, but because the something is nationally determined, it can be changed and ratcheted up by each state at any time. It may not make you feel a lot better, but I would suggest that at this juncture, this kind of flexible approach is the only way for international law to come to grips with promoting collective action in the context of complexity,” she explained.

University professor emeritus Michael Trebilcock and professor of law Edward Iacobucci presented on the “institutional challenges at the heart of climate change policy.” Their focus, Trebilock explained, was a national one on how countries “go about formulating effective climate change policies.”

Trebilock noted that a “large part of the problem” includes “scientific uncertainty, technological uncertainty, cognitive biases that make it hard to forge a public and political consensus, and collective action problems intergenerationally amongst different elements of the current generation and internationally.”

He also noted that “every country has certain institutional traditions” that “dictate what are acceptable” for the formulation policy mechanisms or institutional regimes.

“Drawing on that insight,” he said, they recommend that the country do something that “builds on Canadian policymaking traditions.”

“We propose the creation of a commission of inquiry. Canada has a long, long tradition of appointing commissions of inquiry to investigate complex and contentious policy issues. We would put this commission on a tight fuse with a year for its initial report, three months to issue a discussion paper identifying the key issues, six months for submissions, a year for an interim report,” he explained, imagining a commission of 10 or 12 people with a “short reporting deadline that would be acting in their personal capacity, that would be drawn from or sensitive to different regions of the country, or different sectors of the economy, established public figures of one kind or another that would span the partisan political divide, within reason.”

“We think this would provide a forum for a national debate of climate change policy that is currently solely lacking deadlines and targets routinely adopted and routinely missed,” he added, stressing that the time for “hand-wringing” is over.

“Anything short of a set of alternative concrete proposals is not going to move the goal post,” he concluded.

Addressing Indigenous law and Canadian climate governance, John Borrows, a professor of law and the Loveland Chair in Indigenous Law, noted that we’re “living in deep time,” and the climate and nature around us has shifted through time.

“Twelve thousand years ago, if we would have looked up, there would be an ice sheet a kilometre over our heads. As that ice melted, it changed the landscape here. The land rebounded, the water pooled in and shifted back and forth in different directions. And our first laws, our first traditions, our first standards, principles, criteria, authority and measures, signposts, guideposts, measures as Indigenous peoples, as Anishinaabe people, come from what we do in the face of that tremendously changed climate,” he explained, noting that by colonial time, Indigenous peoples faced the “paving over of our lands and taking away of our soils, and forests disappearing by and large, and population of animals collapsing.

“If you want to know what climate change looks like in our future, you might look to what Indigenous peoples are living with today,” he stressed.

“They're impoverished, as we all are impoverished, because we could have a different set of circumstances,” he added.

John Borrows noted that in the “last 90 years, if you talk to people farming or fishing, or living close to the land, they will tell you their worries and they will create observations about what’s going on with the ice cover, and the running of the sap, and the fish and their health, and where they used to be and they’re not there anymore.”

He emphasized “the necessity of recognizing the danger of a single story in the way that we try to approach” climate change issues.

“We need the checks and balances of scale through time, scale of different institutions, scales of different organizations, because the notion is that we need all the help that we can get. We have these cognitive biases,” he added, highlighting the need for “angles of vision,” from time and different communities across the world.

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