Let’s Think Beyond Kyoto, Paris and Social Movements: The Legal Responsibility of Private Actors for Climate Change

This article is part of the Global Governance Debates series

By Gor Samvel
Graduate Institute of International and Development Studies

Keywords: climate change, non-state actors, industrial emissions, Paris Agreement, COVID-19

Synopsis:  In the post-COVID19 world, neither a state-centric Paris Agreement, nor social movements will be sufficient to deal with climate change. The pandemic, most probably to be followed by an economic crisis, presents us with a historic choice about the future diversity and sustainability of our energy sources.

This rejoinder to the debate of fellow scholars – Urs Luterbacher and Naghmeh Nasiritousi – on global environmental governance is written at a very trying time for every aspect of human existence. As of March 24, Coronavirus (COVID-19) has taken lives of thousands from every continent of this world, except Antarctica. The latter, though, has been also melting unattended  at an alarming rate well before. The virus is said to be “…the biggest crisis of our generation…, which will probably shape the world for years to come…” (Y. N.  Harari: The World After Coronavirus).

But if we are to live in a new world, then, what does this world have to say about one of the major concerns that will pass from the “old” world to the “new” one: climate change? Will the global community rise to the challenge through stronger solidarity, or will it react to the contrary?  In the debate on the effectiveness of the current global climate regime, the approaches of Urs Luterbacher and Naghmeh Nasiritousi, though seemingly opposing, are still situated along the same continuum. While Urs Luterbacher considers the Paris Agreement as not binding enough and the social movements as insufficient to deal with a problem of this magnitude, Naghmeh Nasiritousi reinforces the Paris Agreement as the only legitimate framework accepted by the majority of states, and the importance of social movements and coalitions (e.g. the “We Are Still In” coalition) to pressure governments into stronger climate action.

Even if we deem the Paris Agreement to be as binding as the Kyoto Protocol, or the social movements as powerful influencers of politics, this may still have an insufficient influence on the matrix of underlying fundamental interests. Climate change is driven by such industries as energy, agriculture, general land use, waste (all resulting in industry-related Greenhouse Gas, or GHG, emissions), and by behavioral patterns rooted in the world’s consumerist society (adding on to or indirectly supporting GHG emissions). The history of the success and failure of environmental regimes inform us that behind every success story of perceived Westphalian state-centrism is, in fact, the input of non-state actors, both private and public, whose actions were the sources of emerging international responsibility. For example, the much-praised success of the Montreal Protocol was a result of the commitment of the same CFC producing industry to conduct research on and produce alternatives to ozone depleting substances. Similarly, under the UNECE Air Convention the reduction of VOC-emissions was achieved, for example, by rapid development of low-solvent or solvent-free paints. For the success of the Paris Agreement too, the energy sector possesses sufficient alternatives that could be used.

For around 100 industries, responsible for more than the half of all GHG emissions, the Kyoto Protocol and the Paris Agreement have created an opportunity for transformation. Nonetheless, the involvement of these major industries in the discourse surrounding international climate law has been very limited when compared, for example, to the Montreal Protocol. In the latter case, industry was part of the responsibility discourse in terms of its invaluable capacity to look for alternatives to CFCs. Also, the  Paris Agreement  failed to break through the state-centric treaty language in international law.  It did not formulate direct obligations for the polluting industries (i.e. “The energy industries operating in the territories of a party to this convention are obliged to…”). In light of this, the enduring expectation is that the industries with the greatest impact on climate change will soon realize the diminishing value of their output in a world of agonizing heat waves and rapidly declining biodiversity.

In the post-coronavirus world, most probably at the outskirts of economic recession, we will have an opportunity to choose the energy sources needed to reestablish growth. In this respect, while the International Energy Agency cautions that “…we are entering a period of sustained pressures on development models that rely heavily on oil and gas”, renewable power capacity is set to expand by 50% between 2019 and 2024, with China alone accounting for 40% of this expansion (see IEA, Renewables 2019). By 2050, renewable energy is predicted to become the leading source of primary energy consumption. Certainly, for now, coal remains the most-used industrial fuel but growth in renewables is the fastest (U.S. EIA, International Energy Outlook 2019). These trends indicate that we are still at the crossroad of either investing more into renewables or in fossil fuels. In this respect, the COVID-19 pandemic is a testimony of the state’s capacity for more interventionist policies, in our case for creating and boosting renewable energy markets (i.e. following the suit of Germany). In terms of end-use energy consumption, the COVID-19 pandemic teaches us that in the face of necessity, people are ready to abandon the excessive attributes of the consumerist lifestyle long portrayed as an indispensable part of the lifestyle of a welfare state citizen.

To sum up, the current historical context presents us with an unprecedented opportunity to build a more climate-friendly future. On this path the global community shall remind itself of the tremendous capacity and value of inclusive international law: a system where state-centrism does not prevent private actors to assume their share of legal responsibility.

This rejoinder is part of our debate on “Global Environmental Governance.” It is written in response to “Societal Mobilization is Key to Global Climate Action” by Naghmeh Nasiritousi and “Greta Thunberg is Right! So, Then What?” by Urs Luterbacher.