10.1 Introduction

As two-thirds of the world’s greenhouse gas emissions are generated in the energy sector,Footnote ¹ energy-related investment is essential to sustainability. Fossil fuel still provides the basis for powering the world’s industry and transport, and for producing its electricity, heating and cooling.Footnote ² According to the Intergovernmental Panel on Climate Change (IPCC), it is essential that both ‘governments and the private sector’ make sure that ‘investment in clean and sustainable energy innovation increases’ to tackle the climate crisis.Footnote ³

From a regulatory standpoint, in line with the Sustainable Development Goals,Footnote ⁴ the United Nations Framework Convention on Climate Change (UNFCCC) regime establishes fundamental norms for mitigating greenhouse gas emissions,Footnote ⁵ while the Energy Charter Treaty (ECT),Footnote ⁶ which is largely an initiative of the European Union (EU), is a critical instrument for the governance of investment in the energy sector.Footnote ⁷ Both instruments were adopted in the 1990s; however, whereas the UNFCCC relies heavily on the implementation of new technologies and a transition to clean energy (preamble), these are not the priorities of the ECT, which is still anchored to a model of investment that affords broad protection to cross-border investors.

It is therefore necessary to explore the relationship between the UNFCCC and related regulatory instruments on the one hand, and the ECT on the other, to assess their reciprocal consistency. The research proceeds along the lines of the ‘systemic integration’ principle codified in article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT)Footnote ⁸ and the Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations (VCLTIO).Footnote ⁹ As treaties must not be considered in isolation, but should rather be construed in their international legal context,Footnote ¹⁰ this contribution assesses the possibility of a regulatory conflict between the UNFCCC and the ECT in the area of energy-related investment. It argues that, if the ECT supports investment in renewables and fossil fuel equally, it might clash with the objective of stabilizing anthropogenic greenhouse gas emissions within sustainable limits under the UNFCCC, thus largely hindering the implementation of the European Green Deal.

This chapter proceeds in two parts. The first outlines obligations under the UNFCCC and the ECT, aiming to identify a possible conflict and its scope by evaluating both UNFCCC and ECT obligations, and their implications for climate change, in turn. The second aims to chart some possible ways forward, particularly in the context of the modernization of the ECT, with respect to both substantive and procedural norms. This part elaborates on the flexible approach to investment protection developed by the EU.Footnote ¹¹ It applies some proposals that have been put forward de lege ferenda to green investment, such as the Model Treaty for Climate Change Mitigation and Adaptation (TSICCMA) and the Green Investment Protocol (GIP),Footnote ¹² to the ECT within the framework of the modernization process.

10.2 United Nations Framework Convention on Climate Change and Energy Charter Treaty: Clashing Commitments?

10.3 Turning the Energy Charter Treaty into a Climate Friendly Agreement?

10.4 Conclusion

A systemic analysis of investment obligations under the UNFCCC and the ECT reveals several clashing obligations in the area of investment. While decarbonization is an absolute priority for States and international organizations under the UNFCCC, the ECT is still based on the model of BITs and MITs that protect investment in fossil fuel and clean energy alike, disregarding climate externalities. Such a clash has the potential to trigger requests for billions in compensation, seriously hampering the capacity of States and the EU to achieve their objectives under the UNFCCC.

This chapter argues that resignation from the ECT should not be the preferred option, particularly in the light of the ‘sunset clause’, which binds sovereign entities to respecting investment obligations under the ECT for an additional 20 years after the taking effect of resignation. Therefore, it is argued that the preferable solution for avoiding investment obligations under the ECT impeding the implementation of effective climate policies (mise en oeuvre) under the UNFCCC is rethinking the ECT in the context of the current modernization process, establishing a preferential track for investment in renewables.

Consistent with de lege ferenda model treaties in the area of investment and EU proposals for the modernization of the ECT, a preferential track for carbon-neutral investment should be established on grounds of environmental necessity, including additional environmental rights and obligations for sovereign and non-sovereign entities as well as reasonable adjustments to the FET standard. Substantive preferential measures should be complemented by improved ex-ante and ex-post ad-hoc enforcement procedures, including impartial environmental impact assessments, investor–State and State–State litigation, as well as the possibility of action by interested third parties.

11.1 Introduction

‘Digitalisation’ is the process of running a company through procedures that take place in digital format.Footnote ¹ It involves the ‘digitisation’ of data and is at the basis of ‘digital transformation’, that is, the progressive digitalisation of business, which is a major societal challenge in our times. Because of its manifold implications – for instance, as regards our capacity to make informed decisions – digitalisation has been associated with the green transition, along the lines of the ideas of ‘digital sustainability’ and the ‘twin transitions’.Footnote ²

While the green transition and digital transformation have been traditionally pursued as part of separate policy areas, the United Nations (UN) has long underscored the need for States to adopt technologies that enable environmental sustainability and low-emission pathways.Footnote ³ Along these lines, in 2014 Singapore launched the Smart Nation Vision, a holistic policy aiming to achieve, inter alia, climate sustainability.Footnote ⁴ The programme includes a high-speed broadband network, establishing sensors across the island for monitoring purposes and training public agents in data science. To this end, a special regulatory framework has also been established to foster investment outside existing regulations. Concretely, the State makes water usage data readily accessible to residents for easy management of water consumption,Footnote ⁵ a technique that is considered to have wide positive impacts on climate.Footnote ⁶ Advanced urban congestion pricing has also been combined with a global navigation satellite system, allowing constant monitoring of traffic flow and improvement of traffic conditions. Testing projects co-ordinated by different government agencies helping to assess charging technologies and cybersecurity eventually led to the extensive adoption of electric cars and buses.

Particularly since 2015, the EU has started to promote the implementation of a joint approach, underscoring the beneficial outcomes expected from a digital policy designed to face environmental and climate issues. As pointed out by the Council of the EU in its conclusion on the Digitalisation for the Benefit of the Environment, information and communication technologies are fundamental tools for implementing environmental protection and tackling hazardous climate change. On this basis, the Council invited the Commission to adopt initiatives that aim at combining the European digital strategy with the objectives of the European Green Deal.Footnote ⁷ The benefits of a harmonised (‘twin’) strategy seem to be confirmed by pilot projects and studies highlighting how digital technologies and data analytics within residential buildings, in energy production processes as well as in the transport and agricultural sectors, can contribute to a significant reduction of greenhouse gas emissions.

Considering relevant cases, this chapter explores critically the potential of an integrated and co-ordinated approach between digitalisation and sustainability. First, the chapter illustrates the EU roadmap to make digitalisation and the green transition converge. Second, the chapter explores the pros and cons of the twin transitions. On the one hand, the chapter explores the role that diverse digital technologies can play in accelerating the transition towards a circular economy with net-zero emissions. This part of the research considers the possibility of exploiting digital technologies, such as artificial intelligence, the ‘Internet of Things’, and so-called ‘big data’, to achieve the sustainable development goals included in the UN’s 2030 Agenda and, more specifically, the EU’s binding goal of climate neutrality by 2050. On the other hand, the chapter considers the need to limit the adverse environmental effects deriving from the development and increased use of digital technologies. On this basis, the chapter develops several key suggestions for a better co-ordination of these twin transitions.

11.2 The European Union Roadmap to Digitalisation for Sustainability: A Holistic Approach

The EU has been particularly proactive in prompting the implementation of digital technologies for climate policies. In 2015, the European Commission adopted the Digital Single Market Strategy, which is one of the 10 political priorities of the Union.Footnote ⁸ The Strategy aims to join Member States’ digital markets as one, complementing the monetary union and single market, and facilitating seamless access to digital services and the digital economy to bolster the free movement of capital, goods, services and persons. This is a cornerstone of sustainability, as an essential step to achieving climate neutrality by 2050.Footnote ⁹ Indeed, the Strategy is based on three pillars, encompassing: (1) access, (2) secure and trustworthy infrastructures, and (3) maximising the growth potential of the European digital economy.

The first pillar seeks to implement better access for consumers, including individuals and corporations, to digital services across Europe. This necessitates the harmonisation of regulation on matters such as copyright, non-discriminatory contracts, and value-added taxation vis-à-vis digital data consumers.Footnote ¹⁰ The second pillar aims at creating trustworthy digitalised networks and a level playing field for network operators, through regulation ensuring competitiveness and data privacy across the borders.Footnote ¹¹ The third pillar fosters investment in information and communications technology (ICT) infrastructures and techniques, such as cloud computing and Big Data, and inclusiveness.Footnote ¹² This third pillar in particular is underpinned by the idea of ensuring that European industries are at the forefront of industrial processes for a sustainable economy.Footnote ¹³

Within this framework, the EU has adopted a variety of regulatory tools, whereby climate change and sustainability emerge as core objectives. In particular, in March 2021 the Commission adopted a Communication on the Digital Compass 2030,Footnote ¹⁴ which affirms the necessity of a sustainable and energy-efficient digital environment and EU leadership in evolving technologies such as 6G and quantum in the fight against climate change and environmental challenges.Footnote ¹⁵ Indeed, the Communication underscores the centrality of digitally enabled green solutions, including the institution of a European digital product passport to disseminate information on sustainable value chains and the necessity of massively investing in developing a digital technology industry in the EU.Footnote ¹⁶

Along these lines, in 2020 the European Commission adopted a Communication on a new industrial strategy.Footnote ¹⁷ This instrument seeks to leverage the internal market to make the EU a leader in industrial value chains across the spectrum, whereby energy-intensive sectors have a key role to play in reducing the Union’s carbon footprint. Such a transformation is underpinned by the enhancement of critical digital infrastructure, notably via the implementation of highly secured and state-of-the-art 5G and 6G networks.Footnote ¹⁸ More specifically, ‘smart sector integration’ and ‘trans-European energy networks’ emerge as core vehicles for achieving energy efficiency and creating new markets for climate neutral and circular products, such as steel and basic chemicals.Footnote ¹⁹ Digitalisation is therefore key to the aim of ‘modernising and decarbonising energy-intensive industries’ as ‘a top priority’, which necessitates ‘novel industrial processes’ as well as ‘more clean technologies to reduce costs and improve market readiness’.Footnote ²⁰ The EU Emissions Trading System Innovation Fund is thus envisaged as an instrument to deploy ‘large-scale innovative projects’, such as the Comprehensive Strategy for Sustainable and Smart Mobility, and for integrating ‘clean products in all energy-intensive sectors’.Footnote ²¹

On 23 February 2022, the Commission put forward a proposal for a Regulation on data, which is seen as ‘a core component of the digital economy, and an essential resource to secure the green and digital transitions’.Footnote ²² Grounded in article 114 of the Treaty on the Functioning of the European Union (TFEU), which allows the approximation of rules for the establishment and functioning of the internal market, the regulation aims to allow ‘a greater and fairer flow of data in all sectors’, spanning business-to-business, business-to-government, government-to-business and government-to-government interaction.Footnote ²³ The Regulation thus provides an obligation for the producer to make available to the consumer and, upon request, to third parties, data related to a product in business-to-business and business-to-consumer relations (chapter II). Similarly, in case of need, a data holder must make available data to public institutions, for instance, when necessary to respond to emergency situations or for the fulfilment of public tasks (chapter III). For the purposes of ensuring competitiveness and flexibility, chapter VI establishes rights such as the possibility of terminating a data-processing service contractual agreement, after a maximum notice period of 30 calendar days. To ensure interoperability, chapter VIII establishes that operators of data-processing spaces ensure that data set content, use restrictions, licences, data collection methodology, data quality and uncertainty be sufficiently outlined to allow the recipient to find, access and use data. Procedurally, Member States are requested to designate adequate independent authorities to monitor the implementation of the regulation, with broad competence spanning the investigations of alleged violations and the monitoring of technological developments relevant to the availability and use of data (chapter X).

On 14 December 2022, the Parliament, Council and Commission adopted Decision 2022/2481, confirming the Digital Decade Policy Programme 2030, aiming to make digital infrastructure and technology more sustainable, resilient and energy- and resource-efficient and contributing to a sustainable circular and climate-neutral economy and society along the lines of the Green Deal.Footnote ²⁴ The programme harmonises national policies via Member States’ digital decade strategic roadmaps and co-operation between these and the Commission, in consultation with stakeholders (articles 7 ff.). The day after, this was followed by the solemn proclamation of the Declaration on Digital Rights and Principles.Footnote ²⁵ The Preamble to the Declaration not only acknowledges that the digital transformation affects every aspect of peoples’ lives, and offers significant opportunities for sustainability (per paragraph 2), but also challenges fundamental rights (per paragraph 3). The aim is to establish a model of digital transformation that ‘strengthens the human dimension of the digital ecosystem with the Digital Single Market at its core’, ensuring that ‘technology assists in addressing the need to take climate action and protect the environment’ (preamble, paragraph 5). Besides the essential right to the protection of personal data under chapter II, in line with article 7 of the EU Charter of Fundamental Rights, the Declaration embeds an entire chapter (VI) on sustainability. This provides that, in the context of a circular economy, digital products and services should be produced, used, repaired, recycled and disposed of so as to mitigate their negative impact on the environment, avoiding premature obsolescence and implementing effective universal access to information to allow responsible choices (per paragraphs 24–25). For this purpose, the EU particularly commits to promoting innovative digital technologies with a positive effect on the environment and climate, accelerating the green transition (per paragraph 25).

This brief overview of EU regulatory initiatives shows that the Union takes a holistic approach to the ‘twin’ transitions. Digitalisation is thus comprehensively embraced as a key means, if not the fundamental panacea, to achieve the objectives of the Green Deal and ultimately climate neutrality by 2050. While regulatory initiatives and studies commissioned by EU institutions,Footnote ²⁶ notably the Declaration on Digital Rights and Principles, indicate that the EU is fully aware of regulatory problems raised by the necessity of achieving digital harmonisation in the common market, for instance, as concerns competitiveness and cybersecurity,Footnote ²⁷ the idea is essentially that smart grids are the way forward to achieve the green transition.

11.3 Digitalisation and Climate Change

11.4 Twin Transitions?

11.5 Conclusion

The EU has holistically embraced the digitalisation of the internal market as a priority and a key means towards the implementation of the Green Deal and climate policies. Digitalisation indeed provides several advantages in terms of climate change mitigation and adaptation, spanning smart grids, improved monitoring of environmental phenomena such as earthquakes and hurricanes, and limited pollution in extracting oil and gas. However, at the same time, digitalisation entails critical shortcomings, spanning increased greenhouse gas emissions from improved availability of oil and gas reservoirs to the heightened carbon footprint of digital devices actively operated or on standby and the difficulty of managing digital and climate choices. Advantages and shortcomings are strictly intermingled, and scholars are divided as concerns the viability of digitalisation for sustainable policies and the implementation of the European Green Deal, as proven by the experience of other jurisdictions.

While a holistic approach to digitalisation for sustainability seems a viable option, it is suggested that the EU couple this fundamental policy choice with a careful balance of pros and cons in outlining the prospective digital transformation of its economy for climate sustainability. In this sense, EU policies correctly aim to create a competitive playing field and promote adequate information among producers, service providers and consumers, within and outside the energy sector, to optimise the choice and use of digital technologies. Besides such measures, it is essential that the EU monitor the impact of digitalisation on overall energy demand, avoiding an excessive increase in energy consumption. For this purpose, EU policymakers might couple the holistic acceptance of digitalisation with a ‘learn by doing’ attitude, setting a variety of real-world experiments across supply chains to test the viability of its digital policy, in close collaboration with stakeholders.

12.1 Introduction

Climate change has noticeably demonstrated its ability to provoke noxious impacts on any component of the Earth’s environment, including oceans.Footnote ¹ The most patent example of this deleterious impact on the seas is provided by the increasing presence of carbon dioxide (CO₂) gathering therein. This presence is due to different reasons: on the one hand, the increasing CO₂ in the atmosphere is absorbed by the oceans that typically serve as a natural carbon sink.Footnote ² For this reason, the amount of CO₂ is significantly more sizeable in the oceans than in the atmosphere.Footnote ³ On the other hand, the increasing presence of CO₂ that is observed in the oceans originates from ship-born carbon emissions that directly affect seawater.Footnote ⁴

The rising CO₂ presence also brings about the acidification and rising temperature of the oceans. These chemical and physical alterations are the reasons for the dramatic modifications of marine ecosystems: the shrinking of living resources, such as coral reefs, and relocation of animal species towards different latitudes. The degradation of the marine environment also affects human populations, especially those whose lives depend on the exploitation of marine resources.

Finally, the higher temperatures of the atmosphere and oceans bring about sea-level rise. This type of alteration does not only have a negative impact on marine ecosystems; the rise of sea levels may also alter the geophysical configuration of State coastlines and, consequently, the extent of the maritime areas that are subject to State jurisdiction. In the most serious circumstances, entire territories, such as small islands, may be submerged. Thus, even the statehood of small island States may be threatened. In fact, the permanency of the sovereign rights of these States is questionable because it is unclear in which territory such rights might be exercised.Footnote ⁵

As affirmed above, oceans are threatened by climate change like any other component of the Earth’s environment. However, they also play an important role as a natural carbon sink, in which CO₂ is sequestered and stored.Footnote ⁶ In order to mitigate the degradation of the global environment, scientists have suggested enhancing this function of the oceans by means of some anthropogenic interventions, such as carbon sequestration.Footnote ⁷ For the purposes of the present paper, carbon sequestration is ‘the long-term storage of carbon in plants, soils, geologic formations, and the ocean’ that is artificially enhanced through human interventions.Footnote ⁸ At present, these interventions are not yet entirely practicable. In addition, the safety and long-term impact of these activities on the oceans is still uncertain. However, the urgent need to mitigate climate change may compel States or private persons to resort to actions the safety of which is not entirely verified.Footnote ⁹

In the light of the above, the identification of proper technical and legal solutions seems to be necessary to safeguard both the rights of States and individuals and the conservation of the oceans. Carbon sequestration at sea is indeed key among prospective carbon sequestration methods, which fundamentally also include carbon capture and storage on land and via chemical processes such as the construction of absorption towers. While carbon capture is essential to achieving the objectives set in the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Agreement, all of these techniques are in their infancy and entail overcoming complex issues in order to be cost-effective. This chapter underscores the pros and cons of carbon sequestration at sea as a test case and aims to ascertain whether existing international provisions are suitable for a broader and more evolutionary interpretation or if new specific substantive norms are required to regulate and control activities, such as carbon sequestration, that may mitigate the noxious impact of climate change on the oceans. The interaction between climate change and the preservation of the oceans primarily involves two international regimes, namely, those concerning climate change and the law of the sea. The climate-change regime does not have specific provisions concerning the impact of climate change on the oceans, but its norms apply with respect to both land and seas in the same manner.Footnote ¹⁰ The law of the sea regulates several aspects concerning the conservation of the marine environment. Together with the general obligations that are included in the UN Convention on the Law of the Sea (UNCLOS),Footnote ¹¹ more precise provisions are established in the maritime conventions that have been adopted within the International Maritime Organization (IMO) framework with the aim of preserving the marine environment, such as the Convention on the Prevention of Marine Pollution by Dumping of Wastes (‘Anti-Dumping Convention’)Footnote ¹² and the International Convention for the Prevention of Pollution from Ships (MARPOL regime).Footnote ¹³ Nevertheless, none of these norms regulates the impact of climate change on the oceans.

Therefore, existing international provisions seem to require co-ordination and adaptation to the emerging challenges affecting the oceans due to climate change. In spite of the absence of specific substantive norms concerning this matter, the most significant discrepancy between the climate-change regime and the international law of the sea concerns jurisdictional provisions. While the UNFCCC and Paris Agreement primarily establish obligations with respect to the States from the territory of which carbon emissions and other greenhouse gases originate, the international law of the sea recognises the powers and responsibility of States exercising sovereign and exclusive rights over some maritime areas. In addition, the management of the deep seabed is governed according to rules that must be internationally agreed, at least according to Part XI of the UNCLOS.

This discrepancy between the jurisdictional provisions of the climate-change regime and the law of the sea is justified by the fact that climate-change measures, unlike the law of the sea, are usually aimed at the mitigation of rather than adaptation to the noxious impacts of climate change on the environment.Footnote ¹⁴ However, the State-centric approach emerging from both the climate-change regime and international law of the sea does not seem to provide adequate solutions to mitigate the adverse effects of climate change on the oceans. In this regard, some form of global governance seems to be required in order to safeguard and manage sea waters in the common interest regardless of the fact that these goods appear to be under State jurisdiction. Similarly, the mitigation of climate change requires the co-ordinated conduct of all States and private entities in order to be effective. Attention must be paid to some international legal regimes, for example, the Antarctic Treaty System (ATS), which establishes common rules and obligations with respect to States setting aside the jurisdictional criterion that is based on territorial sovereignty.

In short, the purpose of this chapter is to analyse the current norms of international law of the sea with the aim of identifying the appropriate legal instruments to regulate both the emerging challenges affecting the oceans due to climate change and the performance of the mitigating and adaptive measures that scientists have recently proposed to fight these challenges.

12.2 Anthropogenic Carbon Sequestration in the Oceans

Carbon sequestration is a natural function of the oceans, as they capture CO₂ from the atmosphere and store it in their depths. Scientists have suggested enhancing this natural function through human intervention. One of the most frequently proposed solutions is ocean afforestation. Ocean afforestation ‘involves offshore transport and concurrent growth of nearshore macroalgae (seaweed), followed by their export into the deep ocean’.Footnote ¹⁵ In fact, some living species, such as mangrove forests, saltmarsh and seagrass, are effective natural carbon sinks.Footnote ¹⁶

Ocean afforestation may occur in both coastal and open waters. However, there is a significant difference between these two hypotheses as concerns applicable norms. If human intervention is aimed at enhancing the growth or introduction of new seaweeds in sea waters that are close to the coastline, the role of coastal States is crucial for the management and control over these activities. By contrast, according to the international law of the sea, ocean afforestation activities that are carried out in international waters might be barely monitored by States other than the one performing such activities. Offshore afforestation is even more difficult to control when it is carried out by private entities.Footnote ¹⁷

In spite of the fact that ocean afforestation undeniably facilitates carbon sequestration, scientific evidence has also demonstrated that seaweeds grow rapidly and have short lifespans. This effect results in the production of an extensive quantity of residues that remain in the oceans. In addition, the proliferation of seaweeds, which provide food for fish, enhances the increase of fish stocks.Footnote ¹⁸ Thus, ocean afforestation patently entails the alteration of the marine ecosystem including the modification of ocean chemical, physical, and ecological features.Footnote ¹⁹ Moreover, navigation may be hindered by the excessive presence of seaweeds floating offshore. As such, regardless of the legal implications that may originate from the performance of afforestation activities in the different maritime areas, even from a merely scientific point of view, these activities seem to require a meticulous assessment in terms of their impact on the marine ecosystem.Footnote ²⁰

Another activity that has been proposed by scientists in order to enhance the function of carbon sequestration of the oceans is fertilisation, that is, the addition of nutrients, such as iron or nitrates, to the upper layers of the oceans.Footnote ²¹ This activity partially overlaps with ocean afforestation. In fact, iron fertilisation may facilitate the growth of ocean phytoplankton that, as affirmed above, is a biological pump sequestrating inorganic carbon.Footnote ²² Moreover, iron fertilisation may favour the formation of carbonate sediments on the sea floor that are capable of dissolving calcium carbonate minerals in the sea waters. Consequently, both the volume of CO₂ in the atmosphere and the amount of ocean acidification would decrease significantly.Footnote ²³

In spite of these positive effects, ocean fertilisation fundamentally entails the dumping of external matter into the oceans. Dumping at sea has been regulated under international law for at least five decades. In addition, as has been highlighted by scientists,Footnote ²⁴ ocean iron fertilisation might have a negative impact on climate change because it can increase ocean nitrification, more precisely the presence of nitrous oxide (N₂O) in the oceans and atmosphere, which is a much more powerful greenhouse gas than CO₂.Footnote ²⁵ Therefore, the appropriateness of this type of measures for the mitigation of the noxious effects of climate change must be scrutinised from both the scientific and legal perspectives.

Finally, carbon sequestration may entail the storage of CO₂ in the oceans. This type of sequestration may occur either in the mid-depth ocean,Footnote ²⁶ or by means of the injection of CO₂ directly into the ocean floor. The latter solution combines geological sequestration and ocean sequestration.Footnote ²⁷ Thus, the burial of CO₂ into the seabed might affect one of the most controversial issues that are dealt with under the law of the sea, namely the management and control of the deep seabed. In addition, uncertainty concerns the safety of an activity, such as CO₂ burial, which entails the creation of stationary CO₂ sinks in the oceans.Footnote ²⁸

In sum, waiting for more precise scientific information concerning the feasibility and safety of ocean carbon sequestration, an analysis is required to ascertain whether and how such an activity may be regulated under the current provisions of the international law of the sea.

12.3 Carbon Sequestration and the Law of the Sea

As affirmed above, there are no specific provisions of the law of the sea that are aimed at mitigating the noxious effects of climate change on the oceans. This is not surprising, in the light of the fact that the most significant legal instrument concerning the law of the sea – the UNCLOS – was adopted in 1982 when the issue of climate change had not yet attracted the attention of mainstream political and legal audiences.

Nevertheless, the UNCLOS outlines general principles including the duty to protect the marine environment. These principles must be considered to ascertain if and to what extent UNCLOS norms may guide the adoption of measures aimed at the mitigation of the adverse effects of climate change. Moreover, in the light of the highly invasive capacity of climate-change adaptation methods, such as carbon sequestration, their legitimacy must be scrutinised in relation to the UNCLOS principles.

Among general rules, the fundamental duty to protect the marine environment is sanctioned in article 192 of the UNCLOS. To this end, article 194 recognises the obligation of States to adopt preventative and control measures. Most specifically, under articles 207 and 208 of the UNCLOS, States must adopt legislation for the prevention of marine pollution originating from activities that are carried out on land and in the seabed under State jurisdiction, respectively. In both these cases, the State that is competent to adopt such legislation is the coastal State that has jurisdiction over the land and seabed, namely, its territory and continental shelf. By contrast, according to article 209, the protection of the marine environment corresponding to the Area – that is, the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction (UNCLOS article 1(1)) – is ensured by means of agreed international rules. An example of this type of rule is the Agreement on the conservation of marine biological diversity beyond national jurisdiction recently finalised at the UN.Footnote ²⁹ Article 7, setting the fundamental principles of the Agreement, establishes an obligation to preserve marine biodiversity against the adverse effects originating from climate change.Footnote ³⁰

As set out above, even ship-borne CO₂ emissions may enhance the noxious impact of climate change on the oceans. Therefore, the UNCLOS recognises regulatory and control powers over vessels in order to prevent their polluting activities. In this regard, vessels are primarily subject to the jurisdiction of their flag State according to the criterion of ‘nationality’.Footnote ³¹ This is particularly so with respect to cases in which a vessel carries out polluting activities in international waters. Moreover, coastal States may exercise their territorial jurisdiction over foreign vessels that have caused or may cause pollution in their territorial sea and exclusive economic zone (EEZ).Footnote ³² However, according to article 211(5) of the UNCLOS, which regulates the activities that occur in the EEZ, coastal States can only adopt domestic legislation that is consistent with generally recognised international obligations. In recent times, some States have attempted to enact national legislation that is aimed at safeguarding the marine ecosystem within their jurisdiction against the adverse effects of climate change.Footnote ³³ Nevertheless, other States may claim that this legislation is too restrictive and, thus, inconsistent with some of the existing international rules of the law of the sea, such as the norm recognising the freedom of navigation. For this reason, agreed international norms are needed to avoid conflicting views relating to the fundamental issue of the conservation of the marine environment.

Finally, port States may carry out controls over foreign vessels that are voluntarily within their ports in order to ascertain if these vessels comply with technical requirements that ensure that their navigation is not detrimental for the marine environment.Footnote ³⁴ In addition, according to article 217 of the UNCLOS, port States may conduct investigations with respect to foreign ships that are assumed to have carried out polluting activities in international waters.

Thus, under the UNCLOS, the governance of the oceans resides in the hands of a few States that may regulate and control the human activities that affect the marine environment. This may prevent the uniform and effective enforcement of general international obligations. This is particularly so with respect to the non-environment-friendly conduct that, in international waters, may be carried out by the vessels flying the flag of a State the legislation of which is not particularly concerned with the conservation of the oceans.

The duty to prevent the adverse effects of climate change on the marine environment seems to be implicitly sanctioned in the abovementioned provisions of the UNCLOS due to their very general content. However, these norms just define the framework within which more specific provisions are adopted.Footnote ³⁵ In addition, the jurisdictional criteria that underpin the UNCLOS do not guarantee the conservation of the oceans in the common interest. By contrast, both the UNFCCC and the Paris Agreement seem to allow States to adopt measures that are applicable to mitigate the negative impact of climate change on the areas that are located beyond national jurisdiction, such as the international seas.Footnote ³⁶ Therefore, the co-ordinated application of the norms of the climate-change regime and the law of the sea might facilitate the adoption of the most appropriate regulatory measures. In particular, the synergy of these two legal regimes seems to be necessary to face the new challenges that are affecting the governance of the oceans.

One of these challenges concerns the delimitation of the maritime areas, over which coastal States exercise their jurisdiction. According to the UNCLOS, the extent of the territorial sea, continental shelf, and EEZ is measured from the low-water line along the coastFootnote ³⁷. Increasing sea-level rise, which is one of the detrimental effects of climate change, may shift the inner limit of the territorial sea and EEZ inward so as to expand their actual breadth beyond the maximum extent allowed under the law of the sea (which is 12 and 200 nautical miles, respectively). In this case, the strict application of the law of the sea would compel coastal States to move the outer limits of their maritime areas inward so as to guarantee that the maximum extent of these areas is respected. Nevertheless, the recognition of the duty of co-operation between States that is sanctioned in the climate-change regime in order to fight the adverse effects of climate change should also justify a more flexible application of UNCLOS provisions concerning the delimitation of maritime areas. This approach seems to have been also adopted by the International Law Association, which, on the grounds of legal certainty and stability, has suggested that the outer limits of maritime areas be maintained as they were originally defined in spite of the changes occasioned by any future sea-level rise.Footnote ³⁸ Indeed, the law of the sea already establishes exceptional rules when particular geographic conditions are present, for example, the cases in which coastlines are deeply indented or face fringes of islands. In these cases, straight baselines joining projecting coastal points may be drawn.Footnote ³⁹ Along these lines, the peculiar physical conditions of coastlines that originate from sea-level rise might justify the application of special rules for the delimitation of corresponding maritime areas.

Most dramatically, in the case of the disappearance of entire territories, such as small island States, the maritime areas corresponding to such territories no longer have a reason to exist according to the law of the sea. In fact, the exclusive rights that coastal States enjoy over their maritime areas are the extension of the sovereign rights that are recognised over their territory. In this regard, a distinction must be drawn between the rights of the State (that is to say, the governmental organisation with respect to which international personality is recognised) and the rights of the population of such a State. In fact, if the territory of a State totally disappears under the sea, the State loses one of the main features allowing the recognition of its international personality. The termination of the rights of a State should not necessarily entail the cessation of the rights of the population of this State over marine natural resources that are located in the waters that used to be the maritime areas of the disappeared State.Footnote ⁴⁰ It has indeed been suggested that the population should retain its human right to self-determination,Footnote ⁴¹ which encompasses both civil and economic rights, such as the right to preserve its land, waters, and cultural identity and the right to have access to the marine resources on which these persons have habitually based their life.Footnote ⁴² Thus, current challenges that are raised by adverse climate-change conditions require adapting the existing norms of the law of the sea to the new physical and legal status of the oceans. Within this context, a further challenge affecting both the climate-change regime and the law of the sea concerns the need to regulate and control those human interventions aimed at enhancing natural processes with a view to mitigating the adverse effects of climate change, such as ocean afforestation and fertilisation. In this regard, the law of the sea can supplement the climate-change regime with some substantive rules and enforcing instruments that may ease control over human intervention. In fact, human activities that are aimed at enhancing natural carbon sequestration may also have a noxious impact on the marine environment.Footnote ⁴³ Agreed international rules and enforcing instruments are necessary to avoid States and private actors enacting ocean afforestation and fertilisation measures independently. These measures have so far remained on paper, although some States have recently shown interest in testing their effectiveness.Footnote ⁴⁴ In this regard, the norms of the UNCLOS concerning land-originated pollution may be of assistance to establish some limitations to ocean afforestation that may harm the marine environment. According to article 207 of the UNCLOS, coastal States are responsible for those noxious effects created by activities such as the planting of new mangrove forests in their territorial sea. In fact, under article 1(1)(4) of the UNCLOS,Footnote ⁴⁵ ocean afforestation may be considered as a polluting activity when it results in the alteration of the chemical, physical, and ecological features of the marine ecosystem. The responsibility of coastal States may be also envisaged when navigation in international waters, which are close to the coast, is hindered by the excessive presence of seaweeds floating offshore due to afforestation activities on the land or in the maritime areas under the jurisdiction of a State.Footnote ⁴⁶

Similarly, ocean fertilisation may be in some way equated to dumping activities. In fact, under articles 1(1)(5)(a)(i) and 4(1)(1) of the UNCLOS and the 1996 Protocol to the Anti-Dumping Convention, respectively, dumping is defined as ‘any deliberate disposal of wastes or other matter from vessels, aircraft, platforms or other man-made structures’. Although fertilising substances may be beneficial to enhance the carbon sequestration capability of the oceans, they are undoubtedly extraneous elements that are introduced into the sea. This view has been also embraced in the Anti-Dumping Convention regime, including two non-binding resolutions prohibiting ocean fertilisation save for scientific purposes (and subjecting such activity to the assessment framework for scientific research).Footnote ⁴⁷ More recently, the Parties to the Anti-Dumping Convention have made some amendments to existing obligations so as to make binding the provisions of the abovementioned resolutions. These amendments, which are not yet into force, also encompass the definition of both ‘marine geoengineering activities’ and ‘ocean fertilisation’, which are considered anthropogenic interventions affecting the natural features of the marine environment.Footnote ⁴⁸

The law of the sea may also govern activities affecting the burial of CO₂ in the seabed. For example, according to Annex 1 to the 1996 Protocol to the Anti-Dumping Convention, CO₂ streams may be injected into the sub-seabed only if CO₂ is their primary component.Footnote ⁴⁹ In addition, under article 6(2) of that protocol, the export of CO₂ streams may only occur upon the agreement of the exporting and importing States.Footnote ⁵⁰ This is also in line with the provisions of article 210(5) of the UNCLOS, which requires the express prior approval by a coastal State for dumping activities that are carried out within its territorial sea, EEZ, and continental shelf. The rights of coastal States to permit, regulate, and control dumping activities in the waters under their jurisdiction are supplemented by the right and duty of control that flag States may exercise over the vessels flying their flag and the power of investigation that port States may carry out with respect to foreign vessels that are assumed to have carried out polluting activities in the international sea.

In addition, scientific uncertainty concerning the feasibility and safety of carbon sequestration measures requires carrying out some impact assessment, as highlighted by both scientists and lawyers.Footnote ⁵¹ The obligation of carrying out such an assessment, which is sanctioned in articles 206 of the UNCLOS, seems to reflect the basic features of the precautionary principle, although this rule was not yet explicitly recognised at the time of the adoption of the UNCLOS. The need to adopt a precautionary approach is also reflected in the regime originating in the Biological Diversity Convention,Footnote ⁵² which in 2012 established a moratorium with respect to ‘geoengineering activities that have a potential to cause significant adverse transboundary effects, and those deployed in areas beyond national jurisdiction’.Footnote ⁵³ In addition, express reference to the precautionary principle is made with respect to innovative actions that States may enact in the oceans in the Declaration on ‘Our ocean, our future, our responsibility’ that was adopted during the 2022 UN Conference to Support the Implementation of Sustainable Development Goal 14.Footnote ⁵⁴

Thus, the synergic application of the provisions of the climate-change regime and the law of the sea may contribute to the regulation of specific maritime activities, such as those aimed at ocean carbon sequestration. In fact, on the one hand, States must carry out such activities with a view to the common interest of mitigating the adverse effects of climate change. In this regard, the provisions of the climate-change regime establishing global goals may allow a more flexible application of the norms of the UNCLOS sanctioning the rigid distinction between the governance of maritime areas that are under State jurisdiction and those in international waters. On the other hand, the scientific uncertainty of carbon sequestration measures makes their performance at sea potentially harmful for the conservation of the marine environment. Therefore, according to the more flexible interpretation and co-ordinated application of the UNCLOS norms with the provisions on climate change, States might also exercise their enforcing powers that are recognised under the law of the sea to ensure that carbon sequestration measures are lawfully carried out in international waters.

12.4 Global Governance and Ocean Carbon Sequestration: The Antarctic Treaty Model

Ocean carbon sequestration measures, like other instruments aimed at mitigating the adverse effects of climate change, require the active involvement of the entire international community for at least two reasons. First, the anthropogenic activities that provoke the alteration of climate conditions touch upon nearly every part of this planet. Thus, global co-operation is needed to adopt co-ordinated rules to eradicate the problem: carbon sequestration measures may be effective only if they are applied at the global level. Second, conservation of the oceans affects the interests of the entire international community because the marine ecosystem and its resources permit the physical, economic,Footnote ⁵⁵ and, in some cases, cultural existence of States, private entities, and humankind as a whole. For this reason, the oceans are included in the category of the so-called ‘global commons’, namely those goods that must be preserved in the common interest.Footnote ⁵⁶ Thus, the oceans must be preserved against the detrimental effects that may derive from both climate change and carbon sequestration measures entailing hazardous activities.

Existing international norms do not provide a satisfactory solution to this problem. The provisions of the climate-change regime identify common goals in view of the common interest in the conservation of adequate climate conditions, but they do not establish detailed enforcing measures to achieve such goals. By contrast, the provisions of the law of the sea only establish precise obligations with the aim of safeguarding the exclusive rights that States enjoy in the maritime areas under their jurisdiction. The only detailed provisions aiming at satisfying the common interest are the norms of Part XI of the UNCLOS concerning the management of the Area, which, as is well known, is considered part of the ‘common heritage of humankind’. However, Part XI establishes an excessively rigid regulatory and institutional system that cannot be replicated to ensure the safeguard of the goods that have not been declared as ‘common heritage of humankind’, such as territorial and international waters.

Therefore, the emerging challenges affecting the oceans due to climate change and the uncertainty of the appropriateness and safety of the mitigating instruments that have been so far proposed by scientists call for the adoption of regulatory measures that both identify common goals and establish effective enforcing instruments to ensure the conservation of the marine environment. In this regard, the ATS,Footnote ⁵⁷ which originates in the eponymous Antarctic Treaty,Footnote ⁵⁸ provides a model for an international regime governing an area of global importance without resorting to the criteria of ‘State territorial sovereignty’ and the ‘common heritage of humankind’. In fact, according to the so-called ‘bifocal approach’,Footnote ⁵⁹ ATS obligations concerning the management of Antarctica are equally applicable to both the State parties claiming sovereign rights over some of the Antarctic territories and those State parties that deny the legitimacy of these claims.Footnote ⁶⁰ In line with this approach, the Protocol on Environmental Protection, which was added to the Antarctic Treaty in 1991,Footnote ⁶¹ embraces an ecosystem-focused approach, according to which comprehensive protection must be ensured with respect to any Antarctic lands, waters, and resources.Footnote ⁶² Consequently, the safeguarding of these areas and resources is guaranteed by paying attention to their intrinsic physical characteristics rather than to the condition of being under the jurisdiction of a State. If similar provisions were established to safeguard the oceans against the detrimental effects of climate change, all maritime areas, whether under or beyond State jurisdiction, would enjoy the same level of protection.

Furthermore, in order to ensure the effective conservation of the Antarctic environment, the Protocol on Environmental Protection adopts a rigid precautionary approach according to which a prior environmental impact assessment must be carried out with respect to any human activity that is planned in Antarctica.Footnote ⁶³ Impact assessment procedures are also subject to the scrutiny of an international body, the Committee for Environmental Protection, aiming to provide scientific and technical advice to the State parties to the Antarctic Treaty.Footnote ⁶⁴ In line with this rigid precautionary approach, article 7 of the Protocol establishes a moratorium on the exploitation of mineral resources, except for scientific purposes, in order to prevent irreversible detrimental effects on the Antarctic environment.Footnote ⁶⁵ Such an approach would also be beneficial to ensure the adoption of safe carbon removal measures, such as ocean afforestation and fertilisation activities, which may have a significant impact on the marine ecosystem.

Although the ATS is aimed at regulating all the activities occurring in Antarctica in order to provide the overall protection of the land and marine environment, it does not include detailed provisions concerning the mitigation of the adverse effects of climate change on the Antarctic environment. In spite of the fact that governmental and non-governmental organisations had already raised this issue at the end of the twentieth century,Footnote ⁶⁶ the State parties to the Antarctic Treaty only paid their full attention to the matter in 2009, when a special meeting of experts was established to study the interaction between climate change and Antarctica.Footnote ⁶⁷ This group adopted 30 recommendations indicating which measures should be adopted, within and outside the Antarctic area, with the aim of mitigating the impact of climate change on the region.Footnote ⁶⁸ For example, according to recommendation 7, State parties should consider the risk deriving from climate change when they carry out impact assessment procedures for the future construction of permanent structures in Antarctica. Most recently, the Committee for Environmental Protection adopted the Climate Change Response Work Programme,Footnote ⁶⁹ and established the Subsidiary Group on Climate Change Response to facilitate the implementation of the programme.Footnote ⁷⁰ The group must identify the goals to be pursued and the actions that must be prioritised with a view to the mitigation of the detrimental effects of climate change in Antarctica. The relocation of alien species and ocean acidification are at present some of the main concerns of the Climate Change Response Work Programme. As observed above, both the presence of alien species and ocean acidification equally affect the oceans in other areas of the planet. However, in some unfortunate circumstances, these matters may also be the result of the adoption of carbon sequestration measures, such as ocean afforestation and fertilisation. For this reason, measures should be implemented with caution.Footnote ⁷¹

Arguably, a regime regulating the impact assessment of the activities that are carried out in the oceans should be inspired by the same rigid precautionary approach that has been adopted within the ATS. The success of this system has so far resided in the capacity to identify common goals that could be achieved by the States parties by means of their enforcing powers that are definitely more effective than those included in any existing international regime.

12.5 Conclusion

The increasing adverse effects of climate change, particularly on the oceans, calls for a rapid and effective response by the international community as a whole. Scientists have so far proposed solutions that may facilitate CO₂ reduction in the atmosphere by means of mechanisms allowing carbon sequestration in the oceans. Other means include carbon capture and storage on land and via chemical processes such as the construction of absorption towers. Scientific tests on these mechanisms cast doubts on the future possibilities of controlling carbon emissions. The increase of phytoplankton originating from anthropogenic afforestation and fertilisation significantly enhances the carbon-storing capacity of the oceans; nevertheless, scientific certainty does not yet exist as to the safety of these carbon sequestration mechanisms. This is due to the fact that the application of carbon sequestration methods is more difficult in the oceans than on land. In fact, carbon sequestration measures may have noxious effects on marine ecosystems and provoke some unforeseeable chemical interaction between the oceans and atmosphere.Footnote ⁷² It is therefore necessary to establish agreed international standards for the performance of climate-change mitigating measures in order to avoid the autonomous initiatives of some States or private entities resulting in the aggravation of the already dreadful climate conditions of the oceans.

The adoption of common rules requires States to abstain from pursuing selfish interests if, in so doing, they would jeopardise the global goal of improving climate conditions. This renunciation does not entail the denial of those sovereign rights that the international law of the sea recognises in favour of coastal States over their maritime areas. Rather, State sovereignty and corresponding enforcing powers may serve to hinder noxious activities affecting marine ecosystems. Thus, coastal, flag, and port States should act as the custodians of the maritime areas that are under and beyond their jurisdiction with the purpose of accomplishing the global goal of safeguarding the oceans for the sake of the international community as a whole.

In addition, the agreed international rules governing climate-change policies and adaptive mechanisms should also pay attention to the diverse interests of States and private entities that are at issue. In a context where an evolutionary interpretation is required to recognise the rights of the populations that may lose the terrestrial and marine sources essential to their physical, economic, and cultural existence, the obligations of exchanging information and providing scientific and technical assistance should be guaranteed with respect to developing countries in accordance with both the climate-change regime and UNCLOS, in line with the principle of ‘common but differentiated responsibility’ established in article 4(1) of the UNFCCC.Footnote ⁷³ The sharing of scientific knowledge concerning carbon removal, such as ocean afforestation and fertilisation, is even more significant because it is necessary to ensure compliance with the rigid precautionary approach that must be adopted to enact these techniques.Footnote ⁷⁴

Finally, an effective regime for the global governance of crucial issues, such as climate change and corresponding carbon sequestration mechanisms, requires enhancing co-operation between different international legal systems to facilitate the adoption of similar rules within each system with the purpose of achieving common goals.Footnote ⁷⁵ In this regard, the co-ordinated application of the climate-change regime and the law of the sea would be beneficial to ensuring the conservation of the oceans against the adverse impact of climate change.Footnote ⁷⁶ These international legal systems appear to be more similar than expected if their basic principles and objectives are compared with each other.

13.1 Introduction

Given that the Arctic region has only about four million human residents, little industrial activity other than operations associated with the exploitation of natural resources, and no large-scale agriculture to speak of, it may seem reasonable to conclude that the high latitudes of the northern hemisphere are relatively unimportant in terms of the global problem of climate change. Certainly, it is true that direct anthropogenic emissions of greenhouse gases originating in the Arctic are extremely modest, especially when calculated as a fraction of global emissions. Yet it would be a serious mistake to ignore the role of the Arctic in the dynamics of climate change as a global concern. There are at least three reasons why this is the case, all of them featuring what I will argue in this chapter are paradoxical linkages in complex systems with important implications for what goes on in the mid-latitudes.

Arctic processes play roles of fundamental importance in the dynamics of the Earth’s climate system. This is not only a matter of incremental developments like the lowering of the albedo of the Earth’s surface – that is, the measure of diffuse reflection of solar radiation by the Earth’s surface – arising from the melting of sea ice and snow cover on land. It is also a matter of critical tipping elements in the climate system featuring Arctic processes. In addition, the impacts of climate change are showing up more rapidly and dramatically in the Arctic than anywhere else on the planet. Temperatures are rising in the Arctic today at a rate that is at least three times the global average. As a result, issues of adaptation to the impacts of climate change now top policy agendas throughout the Arctic, despite the fact that human activities in the Arctic are not major sources of greenhouse gas emissions. At the same time, the impacts of climate change in the Far North have increased the accessibility of recoverable reserves of Arctic hydrocarbons, opening up new opportunities for the exploitation of the region’s large deposits of oil and especially natural gas and stimulating major international investments in systems for producing and shipping these energy resources to consumers in the industrialized societies of Europe and Asia. Notably, the development of Arctic hydrocarbons has become a cornerstone of the reconstruction of the economy of the Russian Federation following the 1991 dissolution of the Union of Soviet Socialist Republics, creating a national interest of vital importance to policymakers in Moscow.

In this chapter, I examine these roles of the Arctic in climate change, paying particular attention to paradoxical linkages that play out in complex systems. In the next three sections, I consider each of the mechanisms identified in the previous paragraph. With an understanding of these mechanisms in hand, I turn in the penultimate substantive section to an assessment of efforts to make use of international arrangements to address issues arising from the roles of the Arctic in climate change. Because the Arctic consists in large part of areas under the jurisdiction of leading states, such as Canada, Russia, and the United States, there is a sense in which the issues I identify are suitable for consideration in global arenas like the Conference of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC) and the Meeting of the parties to the 2015 Paris Agreement. Nevertheless, the Arctic has an intergovernmental body of its own known as the Arctic Council, established under the terms of a ministerial declaration in 1996 with a mandate to deal with matters of environmental protection and sustainable development of interest to the Arctic States.Footnote ¹ Climate change has been a topic of primary interest to the Arctic Council from its inception through to the present time. The council operates under severe restraints with regard both to its authority to make decisions on matters of substance and to the availability of material resources needed to engage in programmatic activities. The current war in Ukraine has had a disruptive impact on the operations of the council. Nevertheless, the council has played a role of some importance when it comes to documenting what we now regard as the climate emergency and to identifying means to address the challenges of climate change. I explore ways in which the Arctic Council has been able to take steps that are relevant to the problem of climate change, despite the severe constraints under which it operates. I also note the adverse circumstances facing the Council today and what they mean for its work relevant to the problem of climate change. In the concluding section, I turn to the future, using the case of climate change and the Arctic as a vehicle for discussing ways to think about resilience and to respond to critical transitions in complex systems.Footnote ² What are the options for those responsible for dealing with situations in which it is known not only that critical transitions will occur from time to time and that these transitions may feature non-linear developments of an abrupt character, but also that there is no way to produce confident predictions regarding either the exact timing or the precise form of these developments?

13.2 The Arctic in the Earth’s Climate System

One way to think about the roles of the Arctic with regard to climate change is to focus on incremental changes in key variables that can be tracked quantitatively through the compilation of time-series data. A prominent example involves measurable increases in temperature at the Earth’s surface. Temperatures in the Arctic have risen by 2–3°C in recent decades, whereas the global rise in surface temperatures stands at a little over 1°C. This trend, observable in the divergence of the two trajectories starting in the 1990s, is expected to continue during the foreseeable future. In fact, the gap between the trend line in the Arctic and the global trend is growing. An assessment completed in 2021 by the Arctic Monitoring and Assessment Programme, a working group of the Arctic Council, confirms that temperatures are now rising in the Arctic at a rate that is at least three times the global average.Footnote ³

A similar picture emerges from data documenting declines in the abundance and distribution of sea ice in the Arctic over the course of the last few decades. The extent of sea ice in the Arctic varies seasonally, reaching a maximum annually in March and a minimum in September. The extent of sea ice in the Arctic Basin has declined sharply since the 1980s. Most experts expect this trend to continue during the coming years, opening up the prospect that the Arctic will be largely ice-free for several summer months as early as the 2030s and 2040s.Footnote ⁴ Some have even begun to speak of a ‘death spiral’ of Arctic sea ice, anticipating a future in which what is generally regarded as a defining feature of the Arctic becomes a thing of the past.Footnote ⁵ Whether or not this development comes to pass, it is clear that the shifting ice regime in the Far North is a critical feature in the rise of what many now speak of as the ‘new’ Arctic.

What makes these Arctic developments critical with regard to the dynamics of the Earth’s climate system is the operation of positive feedback mechanisms. Rising temperatures accelerate the melting of snow and ice exposing darker surfaces which have a lower albedo and absorb more solar radiation than snow or ice. This, in turn, drives temperatures higher, giving rise to the thawing of permafrost rich in carbon dioxide and methane and creating conditions conducive to the outbreak of massive fires in the high latitudes of the northern hemisphere. In central Siberia, known for its historically extremely low temperatures, the temperature reached an all-time high of 38°C in the summer of 2020, and there is no reason to treat this as a fluke. Similarly, the melting of sea ice produces great increases in expanses of dark seawater, which absorbs far more solar radiation than ice, giving rise to a continuing feedback loop and contributing to the general warming of the oceans.

While these incremental developments play a significant role in the dynamics of the Earth’s climate system, there is another way to think about the role of the Arctic in the climate system that sharpens the paradoxical nature of this relationship and makes the idea of a global climate emergency even more compelling. The key idea here concerns tipping elements or mechanisms that could trigger what are known as critical transitions or bifurcations (in contrast to oscillations) producing fundamental shifts in the character of the Earth’s climate system.Footnote ⁶ Experts have identified a number of these tipping elements, including some like transformative change featuring replacement of the Amazon rainforest with open savannah-like ecosystems that centre on developments occurring in the mid-latitudes. A striking feature of this line of thinking, however, is that several of the most prominent tipping elements in the climate system involve Arctic or Subarctic processes.Footnote ⁷ These include the emergence of an ice-free Arctic Basin, the decline and eventual collapse of the Greenland ice sheet, die off in the vast boreal forests of Siberia and North America, and more or less drastic shifts in the Atlantic Meridional Overturning Circulation (AMOC) system. While it is notoriously difficult to assign probabilities to the likelihood of such occurrences, it is worth emphasizing the magnitude of the mechanisms involved. The Greenland ice sheet, for example, contains enough ice that its collapse would raise sea levels on a global scale by some 6–7 metres. Most assessments of the mass-balance of this ice sheet suggest that the melting of the Greenland ice sheet may take several centuries. There are good reasons to believe that the process is already underway, however, with evidence collected from ice-core drilling projects in Greenland indicating that sharp shifts in the condition of the ice sheet have occurred over remarkably short periods of time in the past.Footnote ⁸

Evidence assembled in recent years reinforces this picture of the critical role of the Arctic in the Earth’s climate system. It is now understood, for example, that there is more carbon dioxide locked in the permafrost of high northern latitudes than the total of all anthropogenic emissions of carbon dioxide since the beginning of the Industrial Revolution; the shallow coastal waters of Arctic seas are rich in methane clathrates.Footnote ⁹ The melting of permafrost and the warming of coastal waters could lead to a destabilization of these reservoirs of greenhouse gases and a resultant migration of some of them into the atmosphere. The mechanisms involved in these processes are subjects of considerable debate within the scientific community at the present time. There is certainly no justification for assuming that these greenhouse gases will migrate from terrestrial and marine systems to the atmosphere in a mighty flood. Still, continuing scientific research on the Earth’s climate system is reinforcing the basic proposition that the Arctic plays a critical role in the Earth’s climate system, despite the low level of anthropogenic emissions of greenhouse gases emanating from the region. Serious efforts to meet the goal of the 2021 Glasgow Climate Pact to limit temperature increases to 1.5°C relative to pre-industrial levels on a global basis must pay attention to the role of the Arctic in the Earth’s climate system.

13.3 Adaptations to the Impacts of Climate Change in the Arctic

These observations set the stage for a discussion of a second major paradox involving complex linkages associated with climate change and the Arctic. Anthropogenic emissions of greenhouse gases originating in the Arctic are minuscule as a proportion of global emissions. But the Arctic is ground zero with regard to the impacts of climate change – the biophysical and socioeconomic effects of climate change are showing up sooner and more dramatically in the Arctic than anywhere else on the planet.Footnote ¹⁰ As a result, some observers have taken to treating the Arctic as the canary in the coal mine when it comes to monitoring the onset of climate change on the planet and thinking about the challenges of adaptation. Although this image is somewhat distasteful in humanitarian terms, it does capture the sense of urgency regarding the status of the Arctic as the leading edge when it comes to recognizing and (hopefully) responding to the onset of climate change. Equally important from the perspective of policy is the fact that Arctic communities and all those concerned with the future of the Arctic must now turn their attention to matters of adaptation to conditions arising from the impacts of climate change. Of course, there is great variation from one subregion to another and even from one community to another within the same subregion when it comes to identifying and responding to the challenges of adaptation. Nevertheless, the Arctic today does offer an opportunity to begin to think rigorously about what is involved in efforts to adapt to the impacts of climate change and the relative merits of a variety of response strategies ranging from local initiatives to international measures.

For Arctic communities, the challenges of adaptation are associated with the biophysical impacts of climate change.Footnote ¹¹ The recession of sea ice has increased the vulnerability of coastal areas to the impact of storm surges. As a result, many areas are now experiencing severe coastal erosion causing shorelines to move landward by many metres each year. Human communities dependent on resources derived from the sea (such as marine mammals and fish) are typically located in close proximity to the coast to afford easy access to the sea and to minimize the energy required to engage in harvesting and processing marine resources. The result, in a growing number of cases, is that the land on which coastal communities are located is literally collapsing into the sea. In some cases, there is room to adapt in a defensive fashion by constructing seawalls or relocating the most exposed houses and related facilities. For all this, more and more coastal communities are facing the necessity of relocating altogether, moving to higher ground and more defensible situations. Relocating entire communities, however, turns out to be extraordinarily challenging not only due to social differences within communities regarding specific options and political hurdles relating to the legal status of alternative sites, but also because the cost of relocating even small communities can easily run into tens or hundreds of millions of dollars. Not surprisingly, adaptation in such cases typically becomes a protracted process fraught with numerous pitfalls and obstacles to progress.

A somewhat similar picture emerges from a consideration of pressures to adapt to the impacts of thawing permafrost. Most infrastructure in the Arctic (such as buildings, roads, airports, pipelines, and utility systems) is built on frozen ground. So long as conditions remain stable, it is possible to take this fact into account at the design stage and to construct facilities that are compatible with these conditions. But the impacts of climate change are leading to rapid increases in the depth of the active layer of the permafrost in many parts of the Arctic, and it is difficult to predict what to expect in this regard over a period commensurate with the normal lifespan of most types of infrastructure. Already, reports of more or less severe damage caused by the thawing of permafrost are mushrooming, and the costs of developing effective solutions to this challenge are likely to be daunting. In all those cases where successful adaptation is likely to be beyond the means of local communities, complex questions concerning the roles and responsibilities of local, state/provincial/oblast, and national governments come into focus. At this stage, the way forward with regard to adapting to the impacts of permafrost thawing is anything but clear.

Other challenges of adaptation of a somewhat similar nature are coming into focus across the Arctic. Ice roads, which are critical for winter travel in many parts of the Arctic, are now useable for shorter and shorter seasons. Massive fires, attributable to higher temperatures and drier conditions, now rage out of control in large parts of Siberia, the Canadian Arctic, and Alaska. In areas that are rich in peat, these fires can continue to burn on a year-round basis, affecting tens of thousands of square kilometres. In other areas, acceleration in the pace of spring melting of snow and ice has led to the repeated flooding of major rivers, and the water released as a result of thawing permafrost has caused the water-logging of soils, interfering with normal activities in many human communities. Rising temperatures have made it possible for destructive insects (for example, the spruce bark beetle) to survive winter conditions and to thrive in the new climate regime. One result is the dieback of sectors of the boreal forest stretching across the Arctic and Subarctic, encompassing thousands of square kilometres. The impacts of these consequences of climate change are by no means uniform. But taken together, they add more layers to the challenges of adapting to the impacts of climate change facing human communities in the Arctic.

One notable consequence of climate change in many parts of the Arctic is an accumulation of shifts in the distribution, abundance, and condition of populations of fish and game. Commercially important stocks of fish are moving to the north as in the case of pollock in the Bering Sea, to the north-east as in the case of cod in the Barents Sea, and to the west as in the case of mackerel in the Norwegian and Greenland Seas.Footnote ¹² Species of wildlife that are important to subsistence harvesters, like marine mammals dependent on sea ice (such as polar bears and walrus) and terrestrial mammals subject to food shortages and insect infestations (like reindeer and caribou), are experiencing increased stresses that reduce their value to human users. There are bright spots in this picture. Cod stocks in the Barents Sea, for example, have held up well so far, despite the fact that the physical features of the Barents Sea ecosystem are changing rapidly. Nevertheless, the overall effect of these changes affecting fish and game is to make life for many Arctic residents riskier and more uncertain.

Of course, climate change is not the only type of change affecting the well-being of the Arctic’s human residents. As Arctic residents know well and as numerous analysts have documented in detail, social change has been a major feature of life in the Arctic for a long time.Footnote ¹³ Communities that were largely ‘off the grid’ in the not so distant past are now fully connected with the outside world through modern forms of transportation and advanced information and communication systems. Even so, the challenges of adapting to the impacts of climate change have intensified social change in the Arctic, making it increasingly difficult for individuals to flourish and maintain a sense of well-being in today’s world. Developments involving reductions in the relevance of traditional knowledge, shifts in gender roles, and increases in dependence on outside sources of support have all had the effect of eroding established ways of life without offering a straightforward or easily adoptable alternative. Under the circumstances, it is not surprising that there is an association between the onset of climate change and social problems including suicide among young people, substance abuse, and domestic violence in many Arctic communities.

These observations should suffice to make it clear that adaptation to the impacts of climate change in the Arctic, which are largely attributable to non-Arctic drivers, is a multi-dimensional challenge with no easy solutions. What works in one part of the Arctic may prove irrelevant or outside the bounds of the possible for one reason or another in other parts of the region. Clearly, there is no substitute for unified and energetic community responses to the challenge of adaptation. Reports from case after case show sharp differences between communities in which coherent community-wide efforts to tackle issues arising from the onset of climate change have arisen and others in which the challenge of adaptation has fed internal differences and intensified pathological behaviour on the part of individuals. But it is equally clear that it is inappropriate to leave Arctic victims of climate change to fend for themselves, scrambling to find workable responses on a community-by-community basis in the absence of external assistance. So far, debates about policy issues relating to climate change at the international, national, and even subnational levels have focused largely on issues of mitigation in contrast to adaptation. In the final analysis, of course, mitigation in the sense of finding ways to reduce (or even reverse) emissions of greenhouse gases is essential. But in areas like the Arctic where the impacts of climate change are upon us, there is no excuse for failing to devote greatly increased imagination, energy, and resources to addressing the challenge of adaptation. There is a lot to be learned in this regard from the experience of the Arctic where efforts to cope with the impacts of climate change are today’s realities rather than tomorrow’s worries.

13.4 Energy from the Arctic

The preceding discussion opens the way to a consideration of another paradoxical consequence of complex linkages involving climate change and the Arctic, a consequence that some regard as a type of adaptation to recent developments but that others see as a dramatic step in the wrong direction in terms of coming to terms with the global challenge of climate change. The point of departure here is the fact that the impacts of climate change on the Arctic have increased the accessibility of the region’s natural resources and made it easier and more cost-effective to deploy innovative methods of moving these resources to southern markets. The Arctic has significant deposits of numerous resources, including iron ore, lead, zinc, copper, gold, diamonds, uranium, and rare Earth elements. But the critical concern with regard to the role of the Arctic in climate change arises from the fact that the region has massive recoverable reserves of fossil fuels, as well.

There is nothing new about the attractions of Arctic oil and gas. In the 1980s, some two million barrels of oil pumped from fields located on Alaska’s North Slope flowed through the Trans-Alaska Pipeline each day. The North Slope also has a very large gas cap, although efforts to find ways to market this resource profitably have met with repeated failures. Norway is a petro-State, dependent upon the production of offshore oil and gas for its remarkable economic prosperity in recent decades. Starting with the development of fields located in the North Sea, Norwegian interest in the development of hydrocarbons under its jurisdiction has shifted northwards in recent times. Norway is now offering leases to companies interested in exploiting deposits of oil and gas in the Barents Sea.

The centre of attention regarding the exploitation of the Arctic’s oil and gas, however, lies in Russia. Even during the USSR era in the 1970s and 1980s, Russian developers extracted large quantities of natural gas from massive fields (for example, Urengoy and Yamburg) located in north-western Siberia, using some of the gas to fuel domestic industries and shipping sizable quantities via pipeline to consumers in western Europe. What is new in this regard is the opening of massive new reserves of natural gas further north on the Yamal and Gydan Peninsulas, the growing engagement of key private firms (such as Novatek) as well as state-owned firms (chiefly Gazprom and Rosneft) in the production of energy from the north, the development of technologies allowing for the shipment of liquified natural gas both eastward and westward in state-of-the-art tankers along the Northern Sea Route (NSR), and the participation of foreign enterprises such as France’s TotalEnergies and the China National Petroleum Company (CNPC) based in the People’s Republic of China (PRC) as key investors in the production and shipment of Russia’s Arctic natural gas.Footnote ¹⁴

With the completion of the new Port of Sabetta on Ob Bay and the delivery of the first of a fleet of Arc-7 liquified natural gas supertankers built by the Republic of Korea’s (ROK) Daewoo Shipbuilding and Marine Engineering Company, shipments of Yamal natural gas produced by Novatek got underway in 2018–2019. Making use of the NSR, it is now feasible to ship natural gas to consumers in Asia during the summer months and to consumers in Europe during the rest of the year. These markets are subject to many forces that make predictions about future trends difficult, including the impacts of the current Russian war in Ukraine. But there is no doubt that the extraction and shipment of Arctic natural gas has developed into a critical component of Russia’s economic strategy in the post-Soviet era and of Russia’s campaign to achieve international recognition of its role as a great power under conditions prevailing in the early twenty-first century. One knowledgeable Russian analyst observed in 2019 that ‘[t]his sector generates about [15] percent of Russia’s current GDP, and this share is projected to increase’.Footnote ¹⁵ Among other things, this means that Arctic gas is a critical contributor to the Russian government’s revenue stream. At present, the coalition between the country’s political leaders and its industrial leaders in support of the continued growth of this sector remains solid.

Novatek is presently hard at work adding to its capacity to produce natural gas on the Yamal and Gydan Peninsulas, with additional projects slated to come on stream during the 2020s, and Gazprom and Rosneft are exploring the scope of recoverable reserves of natural gas in adjacent areas of the Kara Sea. Reliable estimates now suggest that Russia’s Arctic reserves taken together are large enough to justify comparison with the massive reserves of the Middle East and the Gulf of Mexico. What is more, continued development of these reserves fits well with Russian plans for the growth of ship traffic using the NSR and dovetails with the PRC’s interests in raising its profile as a ‘near Arctic state’ and as a player to be taken seriously in thinking about the future of Arctic affairs. Russia’s interest in engaging in bilateral economic co-operation with the PRC grew rapidly in the wake of Russia’s 2014 annexation of Crimea and invasion of eastern Ukraine 2014, and the resultant imposition of sanctions on Russia by the United States and a number of European states. The 2022 invasion has likely accelerated this development. For its part, the PRC has created an investment mechanism known as the Arctic Silk Road Fund and taken steps to integrate its emerging interest in the development of Arctic resources into its comprehensive Belt and Road Initiative.Footnote ¹⁶ Whatever the consequences may be in the realm of climate change, geopolitical forces continue to stimulate both Russia’s commitment to the extraction of Arctic hydrocarbons and a willingness on the part of China and Russia to make common cause in exploiting the natural resources of the Arctic. Others, like the Japanese and the South Koreans, have demonstrated a willingness to become active players in this enterprise; even those European States that have taken the lead in efforts to promote decarbonization as a response to the problem of climate change have been unable to reduce the role of Russian natural gas in fuelling their economic systems. The current Russian War in Ukraine Russian may alter this picture significantly. So far, however, natural gas continues to flow from Russia to Europe, and European payments are helping to shore up the Russian economy.

The paradoxical nature of these developments is glaring. The Arctic plays a critical role in the Earth’s climate system, and the challenge of finding ways to adapt to the impacts of climate change is a matter of extreme urgency to Arctic communities. However, at the same time, the impacts of climate change have increased the accessibility of the Arctic’s natural resources; they have played a key role in making the production and shipment of energy from the North profitable. Russia is a signatory to the 2015 Paris Agreement and has promised to reduce its emissions of greenhouse gases by 30% from 1990 levels by 2030. As chair of the Arctic Council during the 2021–2023 biennium, Russia announced a commitment to the pursuit of sustainability and indicated that efforts to combat the problem of climate change constitute a significant priority in its Arctic policy.Footnote ¹⁷ A focus of particular interest appears to be an effort to alleviate negative impacts of climate change in the Russian Arctic. Yet there is a pronounced disconnect between the two domains. Work proceeds at a vigorous pace on efforts to expand the production and shipment of Arctic natural gas, even while the Russian leadership expresses concerns about the problem of climate change. It remains to be seen when and how policymakers will seek to come to terms with this contradiction.

The disconnect between economic development relying on the consumption of fossil fuels and the recognition of the role of the Arctic in climate change is not exclusive to Russian policymakers and analysts. It is a striking feature of numerous conferences and workshops on Arctic issues occurring in a variety of venues that participants are able to move directly from a session highlighting the onset of the climate emergency in graphic terms to another session focusing on the ins and outs of plans for the production and shipment of Arctic energy resources. What has emerged in this regard has the attributes of a dialogue of the deaf. Members of the two communities are perfectly civil to one another as they move from session to session and converse in the corridors of Arctic venues. But they do not hear one another when it comes to thinking through the implications of the discourses that underlie the development of their ideas. Apparently, one way to respond to paradoxical linkages in complex systems is to compartmentalize thinking in a manner that marginalizes the sources of the difficulties and makes the consequences invisible, at least in the short run.

13.5 The International Relations of Climate and the Arctic

Are there institutional arrangements available to address the paradoxical linkages associated with climate change and the Arctic? The Arctic lacks a comprehensive international regime similar to the Antarctic Treaty System under which the ‘Parties commit themselves to the comprehensive protection of the Antarctic environment … hereby designate Antarctica as a natural reserve, devoted to peace and science’ and adopt rules calling for the demilitarization of Antarctica and the prohibition of ‘[a]ny activity relating to mineral resources, other than scientific research’.Footnote ¹⁸ But this does not mean that there is a vacuum with regard to arrangements designed to respond to needs for governance relating to matters of importance to the Arctic. In the years since the close of the Cold War, in fact, the Arctic has emerged as a focus of attention among a sizable collection of players interested in promoting co-operative responses to an array of Arctic issues.

The most prominent element of the resultant complex of arrangements is the Arctic Council established under the terms of a 1996 ministerial declaration as a high level forum to ‘provide a means for promoting co-operation, co-ordination and interaction among the Arctic States, with the involvement of the Arctic indigenous communities and other Arctic inhabitants on common Arctic issues, in particular issues of sustainable development and environmental protection in the Arctic’.Footnote ¹⁹. In many respects, the council is a weak mechanism. It is grounded in the provisions of a ministerial declaration rather than an international legally binding instrument. The council has no authority to make binding decisions, although it has on several occasions provided a convenient venue for informal consultations on the content of provisions to be included in formal agreements. And the council lacks a source of material resources that would allow it to engage in programmatic activities that could make a significant difference with regard to matters like adaptation to the impacts of climate change in the Arctic.

Still, it would be a mistake to regard the council as ineffectual when it comes to responding to the issues relating to climate change and the Arctic discussed in the preceding sections of this chapter.Footnote ²⁰ The Arctic Council’s working groups, which have established a reputation for producing scientifically sound products, are able to engage in activities involving monitoring and assessment to track the course of climate change in the Arctic and to document trends with regard to the onset of climate change in the high latitudes of the northern hemisphere. Because the council has strong links to diplomatic establishments (the Senior Arctic Officials are representatives of the foreign ministries of the member States), it is able to communicate findings relating to climate change and the Arctic to international bodies concerned with climate change like the Conference of the Parties of the UNFCCC and the Intergovernmental Panel on Climate Change (IPCC). This has given rise to the idea that the council can play the role of what some analysts call an Arctic messenger, delivering news regarding the dramatic development of the impacts of climate change to audiences in a position to absorb the relevant information and to integrate it into their efforts to address the problem of climate change.Footnote ²¹ What is more, the council has a category of Observers, which has grown to include 38 non-Arctic states, intergovernmental organizations, and non-governmental organizations. Today, all the major emitters of greenhouse gases are either members of the council or Observers, and major intergovernmental bodies like the United Nations (UN) Development Programme, the UN Environment Programme, the International Maritime Organization, and the World Meteorological Organization are included in the ranks of intergovernmental observers. This provides the council with what may be thought of as convening power. While the council lacks the authority to make formal decisions, Arctic Council gatherings bring together representatives of most major actors concerned with climate change and provide them with opportunities to engage in off-the-record interactions about ways to address various aspects of the challenge of climate change.

What roles have these institutional mechanisms been able to play in dealing with the concerns discussed in the preceding sections of this chapter? In 1999, the Arctic Council acting in conjunction with the International Arctic Science Committee launched an initiative known as the Arctic Climate Impact Assessment (ACIA) that eventuated in a landmark report including a summary for policymakers delivered at the council’s 2004 Ministerial Meeting in Reykjavik, Iceland. ACIA explored the critical role of the Arctic in the Earth’s Climate System and assembled for the first time a body of clear evidence concerning critical feedback mechanisms and the role of the Arctic as ground zero regarding the impacts of climate change.Footnote ²² The Arctic States worked hard to communicate ACIA’s findings to global forums like the Conference of the Parties of the UNFCCC – indeed, several of the council’s working groups (such as the Arctic Monitoring and Assessment Programme, the Working Group on the Conservation of Arctic Flora and Fauna) have continued to track the accelerating impacts of climate change in the Arctic. This experience reflects both the strengths and the weaknesses of the Arctic Council in addressing climate change and the Arctic. There is general agreement that the compilation of evidence regarding the role of the Arctic in the Earth’s climate system and the proactive efforts of the council to play the role of the Arctic messenger in this domain have made a difference. But at the same time, the experience with ACIA and a series of follow-up reports documenting trends during the years from 2004 to the present makes it clear that the ability of the council to make a difference in this realm is limited to providing early warning regarding emerging concerns and assembling evidence for participants in other arenas to use in support of their efforts to forge agreement on stronger measures needed to come to grips with what is now widely seen as a global climate emergency.

Given the character of the challenges of adapting to the impacts of climate change, it may seem that the Arctic Council as a body dedicated to international co-operation and interaction among Arctic states regarding Arctic issues with the participation of Indigenous peoples and other Arctic residents would be an important mechanism for tackling this challenge. And several of the council’s working groups, including the Sustainable Development Working Group and the Working Group on the Protection of the Arctic Marine Environment, have taken an interest in issues associated with the impacts of climate change on Arctic communities and ecosystems. Nevertheless, several factors have limited the performance of the council in this realm. At the national and international levels, policymakers have devoted their attention largely to issues of mitigation in the sense of measures designed to reduce emissions of greenhouse gases in contrast to adaptation in the sense of finding ways to adjust to changes resulting from the impacts of climate change. Local variations in the impacts of climate change and in the feasibility of implementing various response strategies limit the ability of an international body like the Arctic Council to contribute effectively to crafting effective adaptation strategies. More specifically, successive chairmanships have imposed their own priorities on the agenda of the Sustainable Development Working Group, a situation that has made it difficult for this working group to engage in longer-term efforts to address questions involving adaptation strategies. Still, this does not mean that there is no role for the council to play in promoting successful adaptations to the impacts of climate change. Among other things, the council provides a venue in which key players concerned with adaptation can meet at regular intervals to engage in both on-the-record and off-the-record consultations about the merits of a variety of adaptation strategies and to launch joint initiatives to raise the profile of this concern on policy agendas inside and outside the Arctic.

Perhaps counterintuitively, the Arctic Council has not been able to play a significant role with regard to the paradoxical linkage underlying the region’s growing role as a source of hydrocarbons to fuel industrial systems. There are several reasons for this. As the prior discussion makes clear, the development of Arctic energy has assumed a critical role in the political economy of the Russian Federation. Unless and until this situation changes, it would be unrealistic to expect Russia to pay attention to the views of other members of the Arctic Council regarding the perils of aggressive measures to produce and ship Arctic hydrocarbons. What is more, the bilateral co-operation between Russia and the PRC in this realm fits comfortably into the approach to Arctic issues that the PRC favours as a non-Arctic State limited to observer status in the Arctic Council. Likewise, India, Japan, and the ROK, which are also Arctic Council Observer States, have interests in the development of Arctic hydrocarbons as a measure to provide assurance in the event of disruptions in the supply of hydrocarbons from other areas like the Middle East. It is possible that the Arctic Economic Council, a body that is formally independent but closely aligned with the Arctic Council, could play a constructive role in this realm. For example, the Arctic Economic Council has promoted the idea of an Arctic Investment Protocol, a measure intended to encourage the application of principles of responsible investment with regard to Arctic initiatives. But there is no doubt that the ability of the Arctic Council to make a difference regarding the exploitation of the Arctic’s reserves of fossil fuels is severely constrained.

At this juncture, the operation of the Arctic Council is suffering from the disruptive impacts of the war in Ukraine. In the immediate aftermath of the 2022 Russian invasion, the western members of the council suspended their participation in the activities of the council.Footnote ²³ The effect was to produce a halt in the operation of the council, including in the activities of its various working groups. As the war has dragged on, it has become increasingly clear that this situation is untenable. The Arctic itself remains a zone of low tension. Addressing key issues, including climate change as a prominent example, requires communication and collaboration on a circumpolar basis. Under the circumstances, interest is rising in working out what the members have described as ‘necessary modalities’ for resuming the work of the council in a number of areas. As of the time of writing (June 2022), however, the way forward remains unclear. In this regard, the political convulsions triggered by the war in Ukraine have cast a shadow over efforts to deal with the roles of the Arctic in climate change as they have over many other efforts to come to terms with the climate emergency in international settings.

13.6 Managing Paradoxical Linkages in Complex Systems

There is nothing unusual about the occurrence of paradoxical linkages in the world of complex systems of the sort under consideration in this chapter.Footnote ²⁴ Hyperconnectivity, including what analysts of complex systems call telecoupling, is a prominent feature of such systems. The facts that greenhouse gases emitted in the mid-latitudes produce dramatic consequences in the high latitudes and that the impacts of climate change in the Arctic trigger feedback mechanisms whose consequences are felt on a global scale are entirely compatible with the behaviour of a complex system like the Earth’s climate system. Similarly, non-linear changes are regular occurrences in complex systems. An important case in point regarding climate change and the Arctic centres on the transition between circumstances in which it is possible to protect communities from the effects of climate change and situations in which there is no realistic option other than the wholesale relocation of communities. Another centres on the prospect that temperature increases attributable to activities in the mid-latitudes may trigger large-scale releases of carbon dioxide and methane now locked in permafrost and methane clathrates. In effect, such systems generate critical transitions that are known to occur from time to time but whose actual occurrence generally takes people by surprise because these events involve a form of complex causation that is difficult – often impossible – to grasp in a manner that allows for meaningful prediction.Footnote ²⁵

Are there insights from the case of climate change and the Arctic that will command the attention of those who have a more general interest in managing paradoxical linkages in complex systems? Many – perhaps most – people are fearful of critical transitions or bifurcations, especially when they involve non-linear and surprising shifts for which those affected are unprepared. As a result, they are apt to make heroic efforts to shore up existing systems and to ward off dramatic state changes in these systems, even when the performance of the systems leaves a lot to be desired in terms of a broad range of evaluative criteria. Undoubtedly, this is a major source of the fashionable interest today in the idea of resilience construed as the ability of a system to adjust its internal workings to address a range of pressures or threats without experiencing major changes in its defining features or attributes.Footnote ²⁶ Resilience, on this account, is a good thing – policymakers are well advised to study the determinants of resilience and to invest both political capital and material resources in actions aimed at enhancing the resilience of biophysical, socioeconomic, and what are now often described as socioecological systems.

Thinking about climate change and the Arctic, however, raises questions about the adoption of this line of thinking as a dominant perspective in a world of complex systems. For one thing, as the discussion of the role of the Arctic in the Earth’s climate system makes clear, there are many settings in which critical transitions will occur from time to time, although it is impossible to predict when they will occur with any precision and to anticipate the nature of the chain reactions that will unfold once key thresholds are breached. What is more, the performance of many systems leaves a great deal to be desired, even though those who occupy privileged positions in existing systems can be expected to make every effort to defend or shore up these systems in the interests of maintaining their positions. Conditions prevailing in many Arctic communities are anything but ideal. While it is extremely difficult to generate consensus regarding the choices involved in relocating a community in response to the impacts of climate change, there are cases in which a new start made possible in the course of relocation can provide an opportunity to address a sizable range of problems in a constructive manner. And there are cases in which key features of prevailing systems are part of the problem rather than part of the solution when it comes to dealing with systemic challenges like climate change. The paradoxical linkages underlying growth in the production and shipment of the Arctic’s hydrocarbons, for example, have the effect of reinforcing a system that must give way to some more appropriate alternative in order to come to terms with the challenge of climate change. It is hard to defend initiatives aimed at increasing the resilience of this system in a setting in which finding ways to come to terms with the climate emergency has emerged as one of the twenty-first century’s grand challenges of planetary governance.Footnote ²⁷

What are the policy implications of this line of thinking? Needless to say, it makes sense to monitor complex systems closely to identify tipping elements and to evaluate whether they are approaching thresholds where the probability that critical transitions will occur increases. But it is unrealistic to expect that we can acquire the capacity to forecast the occurrence of bifurcations with any confidence. What this means is that we need to create systems that are agile in the sense that they have the capacity to act quickly and decisively take advantage of windows of opportunity that arise when non-linear processes destabilize entrenched arrangements and make it possible to introduce major changes that would be impossible under normal conditions.Footnote ²⁸ Just as there is an important distinction between what Kahneman and others have called thinking fast and slow, there may well be a similar distinction between acting fast and slow.Footnote ²⁹

With regard to climate change and the Arctic this means developing systems that can respond promptly to the collapse of sea ice, growing indications of instability in the Greenland ice sheet, and increased releases of carbon dioxide and methane from thawing permafrost. It also means putting in place mechanisms that are capable of taking decisive action once it becomes clear that there is no alternative to relocating Arctic communities in the face of the growing impacts of climate change. Developing a capacity to act fast is difficult in human systems featuring a multiplicity of players with divergent interests and the existence of numerous institutional checks and balances that serve to slow down processes of making and implementing social choices. But finding ways to enhance this capacity without falling into the trap of authoritarianism may turn out to be the key to success in a world in which paradoxical linkages in complex systems constitute a central feature of the policy landscape.

14.1 Introduction

In order to implement the European Green Deal, in 2019 the European Union (EU) foresaw the adoption of carbon border adjustment measures (CBAMs) as a key instrument to level differences with carbon pricing schemes other than the EU Emission Trading System (ETS).Footnote ¹ These are now becoming a reality via legislative measures included in the ‘Fit for 55’ package.Footnote ²

The lawfulness and impact of CBAMs is debated and, despite a delayed application, just foreshadowing their adoption has triggered doctrinal confrontation.Footnote ³ CBAMs are usually seen as ‘corrective mechanisms’, essentially as a means to level the cross-border playing field for trade and prevent carbon leakage.Footnote ⁴ Taking into account the distinction between ‘primary’ and ‘secondary’ norms,Footnote ⁵ CBAMs are usually considered within the framework of primary rules under international law, even though their ‘defensive’ and ‘punitive’ purpose is sometimes mentioned.Footnote ⁶ This contribution proposes the alternative view that CBAMs should rather be construed through the lens of secondary international norms. More precisely, the idea is that CBAMs could be framed as international countermeasures taken in response to the breach of a primary obligation, with specific regard to environmental duties, and should thus be justified in derogation from the obligation to ensure free trade (and investment). This approach helps to assess the relationship between economic and environmental regulation under the concept of sustainable development. Arguably, seeing CBAMs as countermeasures provides a lens to assess their viability with respect to the international trade regime, with particular regard to international economic agreements.

The analysis proceeds in two parts. The first part of the contribution presents CBAMs, notably as envisaged by the EU in the European Green Deal and the Fit for 55 Package. This part of the chapter further illustrates problems of consistency raised by CBAMs with respect to general international economic law, on the one hand, and the General Agreement on Tariffs and Trade (GATT) and the General Agreement on Trade in Services (GATS), on the other, via the national treatment principle as a test case. The second part of the contribution assesses CBAMs from the perspective of countermeasures under international law. In the light of this premise, the research considers whether obligations under the United Nations Framework Convention on Climate Change (UNFCCC) can be universalised beyond the relative effectiveness of treaties, and consequently whether States and international organisations can apply CBAMs on an erga omnes contractantes scale under the GATT and the GATS.

14.2 The Debate on the International Legality of Carbon Border Adjustment Measures

14.2.1 Carbon Border Adjustment Measures in the European Green Deal, the Fit for 55 Package and Other Carbon Border Adjustments

As announced in the European Green Deal, in March 2021 the European Parliament passed a resolution invoking the introduction of a CBAM compliant with World Trade Organisation stipulations and EU free trade agreement (FTA) norms, paralleling the EU ETS, in order to implement UFCCC obligations.Footnote ⁷ According to the European Commission, the EU CBAM would apply to the power sector and energy-intensive industrial sectors to reduce the risk of carbon leakage, ensuring that the price of imports reflects accurately their carbon content.Footnote ⁸ The measure needs to comply with WTO rules and EU FTAs.Footnote ⁹

On 14 July 2021, the EU adopted the ‘Fit for 55 Package’, aiming to curb greenhouse gas emissions by 55% by 2030, through a mix of instruments, including the ETS, renewable energy, energy taxation, land use, emissions from aviation, cars and ships, and the CBAM.Footnote ¹⁰ Within the context of the revision of relevant policy instruments in the EU under the package, the CBAM is essential to meeting the objective of climate neutrality by 2050, in line with the Paris Agreement. It intends to level divergences with carbon pricing schemes and climate policies in third-party countries: when foreign policies do not include measures equivalent to the EU ETS, an EU importer is compelled to buy CBAM certificates to cover green differences in production costs.Footnote ¹¹ The measure is grounded in article 192(1) of the Treaty on the Functioning of the European Union (TFEU), which provides that, in consultation with the Economic and Social Committee and the Committee of the Regions, the European Parliament and the Council may decide on action to implement the objectives under TEFU article 191, aiming to preserve, protect and improve the quality of the environment, and promoting international measures to combat climate change. The CBAM indeed aims to level the economic field for carbon pricing in the EU internal market as compared to imported products. Building on Regulation 2018/1999,Footnote ¹² which establishes that EU Member States adopt national measures within the context of a national energy and climate plan (article 3) and report on implementation to the European Commission every two years (article 17), EU organs have now outlined the details of the CBAM mechanism via the Proposal for Regulation 2021/0214,Footnote ¹³ on which the Council and the Parliament reached a political agreement on 12 December 2022, leading to the adoption of Regulation 2023/956 on the implementation of CBAMs.Footnote ¹⁴

Concerning the scope of application of the CBAM, Regulation 2023/956 applies to energy-intensive products at risk of carbon leakage, including imports of electricity, cement, aluminium, fertiliser, as well as iron and steel products – that is, sectors that are at high risk of carbon leakage (recitals 31–40). Reportedly, Russia is the largest exporter of CBAM products to the EU, followed by Turkey, the United Kingdom (UK) and the People’s Republic of China (PRC).Footnote ¹⁵ See Figure 14.1.

Figure 14.1 Exporters of CBAM products to the EU

(source: A Dumitru, B Kölb, M. Wiffelaars, The Carbon Border Adjustment Mechanism Explained. www.rabobank.com/knowledge/d011297275-the-carbon-border-adjustment-mechanism-explained).

Under article 3, Regulation 2023/956 is only concerned with direct greenhouse gas emissions, that is, essentially emissions of carbon dioxide (CO₂), nitrous oxide (N₂O) and perfluorocarbons (PFCs), arising from the production processes of goods directly controlled by the producer. The proposal does not encompass indirect emissions, that is, emissions arising from the production of electricity, heating and cooling consumed during processes towards the production of goods. The production process encompasses chemical and physical activities from the time of production in an installation to that of import into the territory of the Union (article 3 and recital 19). According to article 36, the CBAM will be implemented in 2026 and, in line with recital 57, free allowances will be phased out between 2026 and 2035, following a transition period of three years, starting on 1 October 2023, which is only concerned with data collection. While this is the scope of the measure currently envisaged by the EU, the Commission has the power to extend it so as to encompass, for instance, indirect future greenhouse gas emissions (article 30).

From the standpoint of the procedure, in principle, EU importers of non-EU products must pay a levy, with the exception of markets linked to the EU, particularly the members of the European Free Trade Association (EFTA). According to article 5, prior to importing energy-intensive goods, any importer shall apply to the competent authorities designated by Member States (article 11) for an authorisation to introduce goods into the customs territory of the Union. Furthermore, under article 6, any authorised importer shall submit a yearly CBAM declaration specifying the quantity of imported goods, embedded emissions and the corresponding CBAM certificates to be submitted. Embedded emissions are calculated based on procedures to be spelled out in annex III (article 7) and verified by an accredited organisation (article 8), withholding carbon price paid in the country of origin. Under articles 18–21, the competent authority sells CBAM certificates based on the price of ETS allowances and may review a CBAM declaration within four years, following the year when the declaration is, or should have been, submitted. The importer must surrender to the competent authority a number of CBAM certificates corresponding to declared emissions (article 22). Enforcement takes place via customs authorities, which cannot allow the importation of goods that are not authorised by the competent authority (article 25). The emission declaration and verification process provides that national authorities verify allowances surrendered by companies and apply a levy in case there is a difference between the foreign and domestic allowances surrendered. The European Commission oversees the implementation of the CBAM mechanism, including products that do not have ‘sufficient due cause’ or ‘economic justification’ other than avoiding obligations under Regulation 2023/956 (article 27).

The EU is not the only sovereign entity that is working on carbon border adjustments. A similar mechanism is already in place, for instance, in the electricity market in California.Footnote ¹⁶ Furthermore, Canada, Japan and the United States are considering the possibility of adopting equivalent measures.Footnote ¹⁷ Although they are inspired by the same aim of levelling the international economic playing field, carbon adjustment mechanisms are not identically designed (see Figure 14.2). For instance, under the so-called Coons–Peter Bill,Footnote ¹⁸ like the EU CBAM the U.S. Border Carbon Adjustment (BCA) covers steel, aluminium, cement and iron. However, unlike the EU CBAM, the U.S. BCA does not cover fertiliser, includes ‘fuel’ in the notion of a ‘good’ and encompasses any relevant product identified by the Secretary of the Treasury and any product which has a composition greater than 8.5% consisting of steel, aluminium, cement or iron (article 9901, subsections (7) and (15)). For the purpose of the BCA, the cost of greenhouse gas emissions is calculated based on the average sector cost incurred by companies in the United States (article 9902). The implementing procedure is also only generally defined by providing that, in consultation with the Administrator of the Environmental Protection Agency, the United States Trade Representative and the Secretary of Homeland Security, the Secretary of the Treasury is able to prescribe regulations and guidance to implement BCAs (article 9905(a)). Scholars consider that, while the EU CBAM is mostly grounded in an economic rationale, the U.S. BCA is mostly underpinned by an environmental objective.Footnote ¹⁹ The U.S. BCA is based on the green standard of State environmental policies, which entails improved environmental aims but whose determination entails a margin of discretion and arbitrariness.Footnote ²⁰ The EU CBAM is based on the green standard of single products, which is theoretically more precise, but becomes in practice complex, inter alia, in the light of the number of steps involved in the production chain.Footnote ²¹

Figure 14.2 Summary map of regional, national, and subnational carbon pricing initiatives.

Source: Figure reproduced from Bruegel’s blog post written by André Sapir, www.bruegel.org/blog-post/european-unions-carbon-border-mechanism-and-wto.

14.3 Carbon Border Adjustment Measures as Countermeasures

14.3.3 Relative or General Environmental Obligations: Carbon Border Adjustment Measures as General Agreement on Tariffs and Trade and General Agreement on Trade in Services Erga Omnes Contractantes Countermeasures

Obligations to address climate change arise from treaties. The reference is currently provided by the UNFCCC and the Paris Agreement, particularly articles 4 and 2, respectively. According to a relativist approach, the duty to curb carbon emissions remains a specific obligation within the context of interstate conventional obligations, as codified in VCLT and VCLTIO article 34. Within this paradigm, the EU could adopt CBAMs vis-à-vis other States and international organisations that are parties not only to the GATT and GATS, but also to the UNFCCC and the Paris Agreement. As these have quasi-universal application, essentially, this means that the EU and its Member States may adopt CBAMs vis-à-vis all GATT and GATS (erga omnes contractantes) States that are not in compliance with the obligation to curb carbon emissions. However, there have been States that have at times withdrawn from the UNFCCC Protocols, such the United States under the Trump administration. With regard to such a case, that is, that of a State party to the GATT and GATTS, but not to the UNFCCC Protocols, the EU could not adopt CBAMs in countermeasure, save entering negotiations and outlining an agreed greenhouse gas reduction standard. Alternatively, based on quasi-universal participation in the UNFCCC and the Paris Agreement and support by civil society,Footnote ⁵⁹ the obligation to curb carbon emissions could be approached as a universal one under general international law. Within this framework, the obligation could be further seen as an erga omnes duty and even a peremptory norm.Footnote ⁶⁰ This would entail that the EU and its Member States may adopt CBAMs vis-à-vis all GATT and GATS States that are not in compliance with the obligation to curb carbon emissions. If the EU and its Member States intend to further impose a standard for climate policies and carbon pricing that is higher than the standard established under the UNFCCC regime, they should enter into negotiations with the concerned State or States bilaterally or multilaterally.

By broadening the analysis to other environmental obligations, a State party to the GATT and GATS could adopt CBAMs vis-à-vis all other GATT and GATS States, that is, erga omnes contractantes, by invoking the no-harm rule and sustainable development as an essential component. The ‘no harm’ rule was first outlined in the Trail Smelter arbitration as an obligation to compensate for transboundary harm.Footnote ⁶¹ It has been subsequently confirmed in cases such as Lac Lanoux,Footnote ⁶² and is codified in articles 3–4 of the International Law Commission’s 2001 Draft Articles on Transboundary Harm from Hazardous Activities,Footnote ⁶³ as well as in principle 21 of the 1972 Stockholm Declaration on the Human Environment.Footnote ⁶⁴ The no-harm rule is currently considered a customary norm under general international law. Indeed, in its advisory opinion in Legality of the Threat or Use of Nuclear Weapons, the ICJ determined that there is a ‘general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control’, which ‘is now part of the corpus of international law relating to the environment’.Footnote ⁶⁵ Arguably, it is also the case that the principle of sustainable development, as part of the no-harm rule, constitutes a general obligation under international law.Footnote ⁶⁶ Inadequate climate policies and carbon pricing schemes could therefore be invoked by the EU and its Members States as a breach of the no-harm rule to adopt CBAMs erga omnes contractantes within the WTO, particularly under the GATT and GATS (Figure 14.3).

Figure 14.3 WTO, obligation to curb GHG emissions and carbon border adjustment measures.

14.4 Conclusion

The EU’s attempt to establish its CBAM to level differences between carbon pricing schemes and to implement adequate climate policies has raised a debate on the lawfulness of such mechanisms under international economic law. Under general international law, there is no obligation of non-discrimination in economic relations, and thus the national treatment and MFN principles do not apply. The EU and its Member States are therefore free to adopt CBAMs vis-à-vis third-party countries that are not parties to the WTO or other international economic agreements grounded in the principle of non-discrimination. Within this framework, CBAMs can be adopted for any purpose, be it economic protectionism rather than environmental protection, in which case they will qualify as retaliatory measures. Naturally, CBAMs must be adopted within the limits of existing treaty obligations (lex specialis derogat legi generali).

Under particular economic agreements, seeing CBAMs as countermeasures allows decisive insights to demonstrate their lawfulness. Considering the key example of the national treatment principle under the GATT and the GATS, arguably the EU and its Member States are currently allowed to adopt CBAMs in breach of the national treatment principle as a secondary lawful response to the breach of the primary obligation by a third-party State to curb greenhouse gas emissions. This establishes the fundamental lawfulness of CBAMs and shifts the burden of proving the absence of necessity and proportionality to the third-party State, overcoming the difficulty of shaping a perfect CBAM respectful of complex rules such as the ‘likeness’ requirement interpreted in the light of the ‘disparate impact’ test. Vis-à-vis third-party States that are members of the GATT, GATS and parties to the UNFCCC regime, the EU and its Member States can invoke the breach of the primary obligation to curb greenhouse gas emissions. As regards third-party GATT and GATS States that might not be parties to the UNFCCC regime, the EU and its Member States can invoke the no-harm rule as a general obligation, that is, an erga omnes right and duty, under customary international law.

15.1 Introduction

The business sector has a well-recognised role to play in achieving the development goals of the United Nations’ (UN) 2030 Agenda, in a ‘fair transition’Footnote ¹ to a green economy (EU Green Deal), and in the system for the protection of human rights (via the UN Guiding Principles on Business and Human Rights; UNGPs).Footnote ² The aim of this chapter is to examine the transformation of the notion of corporate social responsibility (CSR) by putting it in a historical and contemporary context, with a special focus on the EU space in the last 20 years. The questions posed herein are: what are the factors driving this rethinking of CSR, what does the change consist of, and how is that change likely to bear on corporate compliance and sustainability performance?

Corporate social responsibility has been a polarising concept due to its governance ramifications. Private ordering and self-regulation have been the domain of CSR scholarship and practice for decades in their attempt to define the private sector’s role and competitive strategies. The divide between CSR hopefuls – pointing out that business can innovate and contribute without drastic legislative mandates – and CSR sceptics – arguing for legal intervention and deterrence – persists. Corporate voluntarism and industry self-regulation extoll virtues of flexibility, innovation, rapidity and costs-saving presumably out of reach for public regulators.Footnote ³ With its positive connotations CSR was often presented as an alternative to the derided ‘command and control’.Footnote ⁴ These ideas carried on in the human rights area, where business self-regulation appeared as a viable response to gaps in international law and States’ unwillingness to regulate transnational companies.

This chapter contributes to climate change scholarship by examining CSR from the ‘business and human rights’ (BHR) vantage point. This treatment is chosen for several reasons: human rights are a significant normative element in the ‘fair’ transition, developments in BHR have changed the understanding of CSR in the last two decades, and advances in human rights due diligence are spilling over into the environmental pillar of CSR. The chapter’s main argument is that older notions of CSR have been abandoned in BHR at two significant turning points: first, in 2011 when the UNGPs prompted the EU to redefine CSR away from ‘voluntarism’ and toward ‘smart regulatory mixes’, and second since 2017, when the EU began moving towards the Green Deal and building a regulatory regime for sustainable finance.Footnote ⁵

The following two sections examine in more depth the two turning points in the last decade of BHR. The fourth section explores some considerations regarding the regulatory regime surrounding CSR nowadays and implications for a fair transition and addressing climate change. In terms of sources, the chapter relies primarily on EU laws, policies, regulatory evaluations and expert reports, as well as academic literature.

15.2 Corporate Social Responsibility in the Pre-Green Deal Period

Corporate social responsibility reached prominence in the United States context in the 1960s, marked by Friedman’s famous critique.Footnote ⁶ It developed fast primarily on the environmental side, which emphasised quantitative measurements, technological solutions and importance of innovation, which shaped the CSR discourse towards emphasising flexibility and self-regulation.Footnote ⁷ By the 1990s, the EU began promoting this notion of CSR and expanded it to the social area.Footnote ⁸ This fit the deregulatory vein of the time, with CSR appearing as ‘neoliberalism’s answer to the social and environmental externalities it was enabling’.Footnote ⁹ In the EU, CSR was mentioned in the 2000 Lisbon strategy with its ambition of EU becoming the world’s most competitive economy by 2010.Footnote ¹⁰ The EU elaborated on CSR throughout the first decade of the 2000s with four CSR strategy papers.Footnote ¹¹ At this time, the UN was proceeding with Global Compact (2000) as a ‘learning platform’ and largest CSR initiative worldwide, and the doomed attempt to devise UN Norms on human rights responsibilities for multinational companies.Footnote ¹²

15.3 Corporate Social Responsibility in the Green Deal Period

After examining the EU’s CSR approach in the pre-Green Deal period and the shift in CSR that occurred in 2011 on the heels of the UNGPs, this section analyses a second shift in CSR in the Green Deal period. The section has a twofold aim: first to explain the EU model of sustainable growth to which CSR now belongs, and second to identify the drivers for the EU’s changed approach to CSR. The main point is that the EU is moving fast to erect a comprehensive and more demanding ‘regulatory mix’ in CSR and that a constellation of new and old drivers is propelling CSR into a new phase of its evolution. The turning point in the EU is arguably the work on sustainable finance that it began in 2017. This EU objective is coupling finance and the real economy to raise capital and thus enable the transition to green economies,Footnote ⁴⁵ and is transforming not only the climate and environmental responsibilities of businesses, but is also serving as the major boost regarding their human rights responsibilities.

Some key moments in developing the EU sustainable growth model have been the establishment of the High-Level Expert Group (HLEG) on sustainable finance in 2016Footnote ⁴⁶, which was followed up by the Technical Expert Group (TEG) on sustainable finance in 2018,Footnote ⁴⁷ and lately by the permanent advisory expert body, the Platform on Sustainable Finance (PSF) in 2020. Drawing on such expertise, the EU has moved fast with the Action Plan on Financing Sustainable Growth (2018),Footnote ⁴⁸ the Green Deal Communication (2019),Footnote ⁴⁹ a Green Taxonomy (2020),Footnote ⁵⁰ and a Financing Strategy (2021),Footnote ⁵¹ as well as a host of legislation and commitments to legislate in an array of discrete areas. In just a few years the EU has erected an entire regulatory ecosystem.

In this context, the EU acknowledged deficiencies regarding its previous approach to CSR. These shortcomings regarded both the few hard laws the EU had employed, as well as the attempted but failed policy coherence in RBC. The EU has conducted its own evaluations and assessed whether reliance on corporate voluntarism and transparency regulations is sufficient, or if passing more stringent legislation is warranted. From this process, the limitations of voluntarism and light touch regulation have emerged strikingly clearly time and time again in the areas of reporting,Footnote ⁵² due diligence,Footnote ⁵³ and corporate governance.Footnote ⁵⁴ Juxtaposed with such damning assessments is the urgency of climate action.

15.4 Conclusions

This chapter set out to examine the concept of CSR as it evolved in the last two decades as part of the BHR agenda. The question was how and why CSR has changed, in particular in the EU. The main findings are that these changes have happened primarily because of the climate emergency and the policy response that relies on sustainable finance. Notions of corporate due diligence play a key role in two ways. On the one hand, corporate due diligence proved to be a unifying concept. The EU brings together human rights and environmental sides of CSR throughout EU value chains. Originally it was the UNGPs that emphasized human rights due diligence, and the EU has now embraced and expanded the concept as sustainability due diligence. On the other hand, the EU has advanced significantly with the ‘regulatory mix’ ideas in the UNGPs. Not only was the ‘voluntarism’ aspect of CSR abandoned, but the EU is now mobilising a broad set of regulatory techniques to create legal and market incentives for sustainability. Within just a decade, the regulatory landscape around CSR has changed dramatically in the EU space, where a comprehensive regulatory ecosystem is being erected at a rapid pace. With its Green Deal, the EU has set its objective a ‘fair transition’ to a green economy that emphasizes the environmental and social sides of CSR in a European model of sustainable growth.

What does this exploration of CSR from a human rights and historical perspective add to the question on whether CSR measures can be effective in implementing climate policies? The business and human rights experience has exposed the ‘voluntarism versus law’ framing as a ‘red herring’ and a less-productive way to think of global governance and the private sector. CSR as corporate voluntarism is a concept that has outlived its usefulness and remains wedded to a neoliberal era when State intervention was anathema and growth within planetary boundaries was not an issue.Footnote ¹²³ The concept now, as exemplified by the EU example, is responsible business conduct understood as due diligence backed by a regulatory mix. The lesson from the CSR period is that it cannot deliver without an enabling regulatory environment, whether in the climate area or the human rights area. In particular, it cannot deliver at scale and cannot achieve transformations at industry and systemic levels. When problems are systemic in this way, private governance encounters limitations despite its claimed speed, flexibility, and innovation. These incentives are simply not sufficient, either for the real economy or the financial sector.

The current regulatory mix experiment in the EU indicates that CSR has to be understood not as pure voluntarism, but rather as a level of corporate discretion that is guided by a battery of legal and market incentives.Footnote ¹²⁴ Notably, the EU is not erecting a command-and-control system. Corporate social responsibility is not about voluntarism, but instead about meaningful compliance in a complex legislative ecosystem and the responsible exercise of discretion. It is premature to gauge corporate compliance in supply chains under this regulatory system, but the comprehensive approach and addition of legal incentives are transformative. Significantly, new opportunities arise in this exercise of discretion – for companies, investors, and States – to develop new competitive strategies such as ‘shared value’ for companies and participation in ‘value-based’ trade for States.Footnote ¹²⁵ Responsible business conduct appears as a key ingredient in the EU policy framework for sustainable finance, production, and consumption, and has a significant role to play in the large-scale transformation to a green and rights-based economy.

16.1 Introduction

Following the Paris Agreement – the central outcome of the eponymous 2015 climate summitFootnote ¹ – the parties decided to implement the objectives envisaged since the beginning of the 1990s via the United Nations Framework Convention on Climate Change (UNFCCC)Footnote ² as the result of the United Nations Conference on Environment and Development (UNCED) of June 1992.Footnote ³ The set goals are to be achieved gradually between now and 2035 and, within this framework, agriculture and food security featured prominently in the Conference of the Parties (COP) 28 that took place in December 2023. Against this backdrop, precise sustainability policies are remarkably at the heart of the 2030 UN Agenda for Sustainable DevelopmentFootnote ⁴ and the Governments Step Up Action on Agriculture and Food SecurityFootnote ⁵ has arisen as a key climate change challenge: food production that reduces carbon emissions contributes significantly to improving sustainable policies and the development of a circular economy is a critical factor in this process. Thus, in order to ensure a sustainable future with low-carbon emissions, it is necessary to outline production processes that are responsible and transparent. For this reason, it is essential not only to identify specific policies that enable healthier and less-polluting production cycles, but also to inform the consumer in a proper way to allow an economic and sociocultural transformation.

A clear example of how sociocultural sustainability can be achieved is the establishment of a comprehensive labelling system that provides not only nutritional information but also data on the environmental impact of food products. Arguably, the progressive extension of environmental labelling from non-food products to food products is emerging as a key factor within the context of climate change policies. In this process, there is a profound interest in identifying new labels, notably environmental labels, with a dual purpose: outlining certifying processes suited to a sustainable and safe development on the one hand, and helping the consumer to make conscious choices when purchasing products on the other.

This contribution aims to explore the possible evolution of a new food environmental labelling system. It analyses the increasing interaction between climate change and food and the implications it may have for labelling. The research first explores the international trajectory and subsequently delves into the implications it may have on the EU’s ecolabelling system.

16.2 Food Security and Climate Change: Towards a Nutritional Environmental Label

Ecolabelling has evolved over time – albeit voluntary, it is progressively expanding to new products. New impetus for such developments has particularly come from the awareness of the link between food security and climate change.

At the domestic level, in 2010 the British Food Standards Agency commissioned a report on the effects of climate change on food.Footnote ⁶ In 2015, awareness that food production and climate change are closely intertwined arose in the international community, particularly via COP21, and the messaging of both the Food and Agriculture Organisation (FAO) and UN. Indeed, the FAO determined that the food system ‘must be considered in the context of … climate change and the depletion of natural resources’.Footnote ⁷ As they are ‘major contributors to [greenhouse gas] emissions, amounting to about one-third of global emissions, it is imperative that food systems evolve to sustainably meet the growing demand globally’.Footnote ⁸ In this context, agriculture emerges as ‘a significant source of greenhouse gas emissions’ and the targets of the Paris Agreement make it ‘essential that agriculture and other land-use sectors be part of the climate solution’.Footnote ⁹ Indeed, ‘it is increasingly clear that the goals of achieving food security and sustainable agriculture and addressing the challenges of climate change are intertwined and need to be addressed in a coordinated manner’.Footnote ¹⁰ Along these lines, in 2019 the newly established Lancet Commission on healthy diets from sustainable food systems,Footnote ¹¹ established under the auspices of the world-leading Lancet medical journal, underscored that the ‘transformation to healthy diets from sustainable food systems is necessary to achieve the UN Sustainable Development Goals and the Paris Agreement’.Footnote ¹² Developed countries should therefore ‘share views on how to encourage more balanced diets and minimize emissions per calorie’,Footnote ¹³ raising the question as to ‘what are the financial and technological solutions for achieving just transition for food security and climate resilient food systems’.Footnote ¹⁴

Along these lines, the Intergovernmental Panel on Climate Change (IPCC) adopted a strategy and commissioned a report on food securityFootnote ¹⁵ that will be undoubtedly debated in upcoming sessions of the IPCC. The idea that sustainable food systems can contribute to ‘lowering emissions of critical climate-warming gases, including methane and carbon dioxide’ has thus become a cornerstone of the UN 2021 Food Systems Summit. Similarly, the International Food Policy Research Institute (IFPRI) considered that ‘food systems contribute substantially to greenhouse gas emissions and must play a role in mitigation through changes in agricultural practices and land use, more efficient value chains, and reduced food loss and waste’Footnote ¹⁶. Food therefore scores high on the COP28 agenda, as demonstrated by initiatives such as FAST (Food and Agriculture for Sustainable Transformation Initiative),Footnote ¹⁷ iCAN (the Initiative on Climate Action and Nutrition)Footnote ¹⁸, and the Roadmap for More Sustainable Food Systems.Footnote ¹⁹

This approach triggers the necessity of installing responsible consumption and production under sustainable development goal 12 and to create a synergy with reduced environmental impact and climate action under sustainable development goal 13.Footnote ²⁰ Central to this strategy is the need to inform the consumer about products that follow high-yielding, resilient and adaptive practices (HYRAP),Footnote ²¹ particularly via food environmental labelling.Footnote ²² Support instruments are thus being created by institutions directly involved in the sector, claiming a precise role for ecolabels as a solution to climate change mitigation.Footnote ²³

16.3 The European Union Trajectory

16.4 Conclusion

While environmental labelling was initially designed merely for the purposes of environmental cleanliness, based on the idea of waste prevention,Footnote ⁶⁴ international regulation is now widening its scope of application with a particular view to spanning greenhouse gas emissions This particularly entails an extension of ecolabelling from non-food to food products, as the food production sector – particularly agriculture – is responsible in itself for one-third of global greenhouse gas emissions. Although the EU Ecolabel Scheme still embraces a restrictive notion of ecolabelling, in the light of evolving regulation in countries such as France, environmental labelling is desirable. It is therefore likely that the EU will de lege ferenda move to an extensive ecolabelling approach, covering both non-food and food products, thereby in part fulfilling the objectives of the Paris Agreement, the UN Agenda 2030 for Sustainable Development and the European Green Deal. In such an evolving framework, it is important to avoid over-information via targeted policies, providing correct consumer information and guaranteeing fair treatment.

17.1 Introduction

The world faces a global climate emergency due to the negative impacts of climate change, not only on biodiversity and ecosystems including species loss and extinction, but also on livelihoods, health, water supply, food security, economic growth, and human security.Footnote ¹ Currently, ‘global warming is likely to reach 1.5°C between 2030 and 2052 if it continues to increase at the current rate’.Footnote ² In order to mitigate climate change and adapt to its negative impacts on natural and human systems, urgent and unprecedented measures are needed. However, even though an international climate change legal regime is in place, states’ measures are lagging behind what is needed to meet the mitigation, adaptation, and financial flow goals set in the Paris Agreement. In fact, between 2010 and 2019, the average annual emissions of greenhouse gases were higher than in any previous decade, and progress on the alignment of financial flows remains slow, heavily focused on mitigation, and has developed heterogeneously across sectors and regions.Footnote ³ Thus, the impacts of climate change continue to cause serious harm as the global temperature keeps increasing, glaciers continue to melt, and environmental disasters such as hurricanes and bushfires are sweeping through countries with increasing regularity.

To achieve more ambitious climate action, particularly through mitigation measures, proactive climate change litigation has emerged as a global trend in recent years.Footnote ⁴ Cases have been filed by a variety of claimants, such as individuals, local authorities, and non-governmental organisations (NGOs), mainly against national governments and corporations, holding them accountable to their legal obligations and, eventually, engendering policy change. In general, climate cases have several objectives,Footnote ⁵ ranging from increasing the alignment of national laws and corporate commitments with the Paris Agreement to debating compensation for damages caused by climate change, up to creating awareness of climate change-related human rights violations. Overall, 2,027 climate change-related cases have been recorded until July 2022 before judicial and quasi-judicial bodies at the international, regional, and domestic levels.Footnote ⁶ With the continuing increase of climate change cases worldwide, questions regarding the role that the judiciary can, and should, play have come to the fore. Not only in cases against governments but also in cases against corporations, the doctrine of the separation of powers has been used as a counterargument in domestic climate change cases.

The doctrine of the separation of powers, with its divisions of the three branches of government (legislative, executive, and judicial), is a vital ingredient of democratic political thought and practice. In the context of climate change litigation, it has called the justiciability of climate change matters, such as climate change legislation and climate targets, into question. Specifically, disagreement exists between advocates for an active judicial role in the climate crisis and those who favour legislative policy discretion. Proactive climate change litigation, which focuses on engendering policy change, especially raises the question as to what extent the judiciary can oblige the other branches of government to take urgent preventative action, and to implement or adjust climate policies. As the doctrine of the separation of powers can be, and has proven to be, an impediment to judicial engagement, climate change litigation faces a dilemma between urgently needed measures against the serious threats of climate change on the one hand and compliance with the doctrine of the separation of powers on the other.

This contribution analyses the role of judges in implementing climate policies as a global issue by taking into consideration the theoretical debates on the doctrine of the separation of powers in different legal systems, along with relevant case-law from different jurisdictions. In consideration of the comparative perspective adopted, the chapter connects international and domestic issues, and highlights to what extent those issues can be overcome to foster an effective implementation of more ambitious climate policies.

17.2 The Role of the Judiciary in Climate Governance: A Global Issue

The global and life-threatening effects of climate change pose an imperative that all nations must independently and co-operatively address with urgency. Climate change is a super-wicked problem,Footnote ⁷ with devastating and widespread consequences for the international community, making urgent preventative action a global responsibility. Unfortunately, at various levels of governance, cohesive and effective policy efforts to combat climate change have notably failed.Footnote ⁸ Climate change litigation has become an increasingly popular avenue for tackling the issue of climate change. It is being adopted as a strategy to push States, government bodies, large companies and/or everyday citizens to reconsider their stances and action plans vis-à-vis climate change.Footnote ⁹ However, it is important to note that not all climate change cases are intended for a social change or outcomes beyond what is associated with an individual case.Footnote ¹⁰ The main takeaway is that climate change litigation is becoming a more creative mechanism in pushing States towards redefining their climate action into more ambitious climate laws and policies. If it is within the domain of the judiciary to exercise its authority in response to this global imperative, how, and in what way, may its decisions influence or direct the outcome? Is the rapid increase in climate change litigation around the world undermining the doctrine of the separation of powers?

Since its origins, when the concepts of governmental functions and the theories of mixed and balanced government started to evolve,Footnote ¹¹ the doctrine of the separation of powers has been a vital ingredient of democratic political thought and practice.Footnote ¹² It is, standing alone as a theory of government, a political thought that has all along involved several discussions about its definition and use of terms.Footnote ¹³ The doctrine has been developed, modified, interpreted, and implemented in different ways, leading to various applications in, and understandings of, governmental structures. However, combined with other political ideas, such as the theory of mixed government, the notion of balance, and the concept of checks and balances,Footnote ¹⁴ the doctrine of the separation of powers has served as a basis for political systems around the world.Footnote ¹⁵ Fundamentally, there are three functions of government according to the doctrine of the separation of powers – legislative, executive, and judicial. In this way, State power is not concentrated within a single State body, but is rather organisationally divided and gives different functions to different actors. Therefore, the separation of the principal institutions of the State limits the possibility of arbitrary excess by the government, while securing citizens’ liberty and individual freedom.Footnote ¹⁶ This is also intended to prevent one branch from having more influence or intervening in the affairs of another branch. In turn, achieving a continued balance of power is the end goal.

Accompanying climate change litigation is a major concern for the status of the doctrine of the separation of powers.Footnote ¹⁷ For instance, the judicial branch may deem a government’s climate policies inadequate or call for specific legislative action, breeding concerns about whether the judiciary is overstepping its remit with such rulings, and where exactly the separation of powers lies within a State.Footnote ¹⁸ Given that climate change is not an issue that will be disappearing soon, the international community is increasingly likely to hear of such concerns associated with climate change cases. Among these concerns is the so-called doctrine of ‘majoritarianism’, according to which the legislative and the executive are elected while the judiciary is not (at least, in most countries).Footnote ¹⁹ Therefore, a court ruling against the legislature or the executive ‘would be going against the majority of the country’.Footnote ²⁰ This is similar to the argument on the accountability of the judiciary, whereby the legislators are held accountable to the public, while the judiciary is not, and on public participation, which is generally restricted in the judicial process. Another argument against more proactive climate litigation is the pretended incapability of the judiciary to deal with a complex issue such as climate change, which involves implications of varying nature, concerning economic, scientific, technical, geopolitical, or even national security matters.Footnote ²¹

On the other hand, several other reasons can be mentioned in favour of a proactive judicial role in climate governance: keeping the other branches in check, defending constitutional values, providing public goods in the long term (which is contrary to the short-termism typical of the elected branches of the State), and ensuring that rights are enforced and/or established. Rights enforcement seems particularly relevant in this historical period, notably after the adoption of Resolution 48/13 by the United Nations (UN) Human Rights Council (in October 2021) and Resolution 76/300 by the UN General Assembly (in July 2022) recognising that having a clean, healthy, and sustainable environment is a human right under international law, and calling on UN Member ‘States, international organizations, business enterprises and other relevant stakeholders to adopt policies, to enhance international cooperation, strengthen capacity-building and continue to share good practices in order to scale up efforts to ensure’ this right.Footnote ²² In general, judicial activism has always been an important source of legal developments around the world, despite presenting an element of opposition to legislators, executives, and even much of the population. This has been demonstrated in the case of the abolishment of segregation in schools by the United States Supreme Court,Footnote ²³ or of the death penalty by the Hungarian Alkotmánybirósága (Constitutional Court).Footnote ²⁴ It is also important to consider the typical phenomenon – and political science notion – of ‘regulatory capture’, by which lobbies and special-interest groups influence regulation and effectively exercise more power than the will of the majority. This puts the judiciary in a more independent and impartial position than the executive and legislative branches. While the judiciary cannot legislate, it can shape jurisprudence that might be conducive to evolution in climate policy, through the responsibility of interpreting the law. Moreover, the strategic function of climate litigation is to be carefully taken into consideration as a vehicle for raising awareness and social mobilisation, and, therefore, for encouraging executives and legislators around the world to foster their ambition in climate policies.

To what extent is the judiciary merely checking that ‘the actions of the legislative and administrative branches conform with the existing law’?Footnote ²⁵ This should be done by making clear through judgements whether the governmental environmental policies are not fulfilling legal obligations and by demanding compliance with those.Footnote ²⁶ Undoubtedly, courts have also had a role in ensuring that any limitations on human rights are justified. By bringing climate cases before courts or quasi-judicial bodies, civil society and other actors are attempting to correct the functioning of the rule of law in a time of emergency. Furthermore, it cannot be emphasised enough that climate cases are not placing an extraordinary task on judges, but rather that the judiciary is performing an ordinary and appropriate function when determining whether the other branches of government are operating within the limits of the law.Footnote ²⁷ Finally, the doctrine of the separation of powers should not be such a crucial problem for climate governance after all, as the judiciary is effectively occupying the void left by the other branches.

17.3 The Separation of Powers in Climate Change Litigation: Theoretical Debates

Considering the analytical and theoretical perspectives on the separation of powers in climate change litigation, several arguments have been advanced on both sides of the debate. What it boils down to is that the role of the judiciary in climate change litigation, and especially when it comes to climate policies, is disputed, between those advocates of absolute policy discretion, and those in favour of a progressive judicial role in the climate crisis.

17.4 Comparative Case-Law

The tension between urgently needed climate measures and compliance with the doctrine of the separation of powers has played out with varying outcomes in recent climate change cases. The following selection of cases can be seen as representing different degrees of adherence to the doctrine in climate change litigation, moving from more progressive judicial stances to more policy discretion.

17.5 Comparison and Recommendations

While considering the cases discussed in the previous section, one can begin to piece together that the judiciary’s role is not static or homogenous among different legal systems. Instead, it takes varied forms. This leads to the question of why, and how, the different interpretations of the doctrine of the separation of power might influence this role? Moreover, considering some of the more restrictive judgements, how can the doctrine of the separation of powers be less of an impediment and lead to more proactive judgements in the future?

17.6 Conclusion

There is a strong debate on the role of judges in implementing climate change policies. Between legal scholarship and the judiciary, the role of judges is classified differently. While some are in favour of a more activist judicial role in climate change litigation, and in implementing climate policies, others are in favour of policy discretion, and assign the implementation of climate policies to the legislative and executive bodies of government. However, most climate policies are not sufficiently meeting the climate targets that are urgently needed to ensure sustainability. An ever-growing number of climate change cases are being filed before judicial and quasi-judicial bodies, targeting these insufficient policies. As a result, the role of judges in climate change litigation is becoming increasingly important.

The question to be answered is whether it is possible to overcome the concern of breaching the doctrine of the separation of powers in climate change litigation. It is also important to consider if a common reference in this field can be found, which might offer some interesting arguments to be circulated in future climate change litigation in different legal systems. It is important to keep in mind that the doctrine of the separation of powers is applied and understood differently across the world. A divide emerges between EU countries, where courts tend to overcome the division of powers, and other countries, particularly the United States, which is notably the major emitter of greenhouse gases worldwide, where courts tend to respect the autonomy of the legislative and the executive in the matter of climate policy. Lastly, it is interesting to note that many of these cases have determined that action must be taken by States, but do not stipulate how legislative and governmental bodies are to do so.

18.1 Introduction

Why would anyone file a legal action about climate change against a company?Footnote ¹ Prima facie, the idea of holding a corporation (or any other individual actor) accountable for the ‘super-wicked’ collective problem of anthropogenic climate change may indeed seem rather surprising.Footnote ² And yet, at closer inspection, it is not as farfetched as it might at first seem. The increasing trend of climate lawsuits against private actors is underpinned by two main considerations. First, collectively and in some cases individually, large corporations have caused vast quantities of greenhouse gas emissions since the Industrial Revolution.Footnote ³ The emissions attributable to the largest industrial greenhouse gas emitters (sometimes referred to as ‘carbon majors’) rival or even exceed those of entire States.Footnote ⁴ Corporate activities have historically contributed substantially to anthropogenic climate change and continue to do so. Second, the role of the business sector is essential in the global transition to a ‘net-zero’ global economy by around mid-century: having a fair chance of achieving the Paris Agreement’s peak temperature goal entails ‘deep emission reductions in all sectors, a wide portfolio of mitigation options and a significant scaling up of investments in those options’.Footnote ⁵ Accordingly, both looking backward and looking forward, the role of the business sector is essential. And yet, the crucial query is whether there is a legal responsibility (that is, liability in case of non-fulfilment of such responsibility) for corporations to take (or to refrain from taking) certain actions concerning climate change, and if so, what such responsibility would look like more specifically. Clear answers cannot always be found in black-letter law, and so interested groups increasingly resort to ‘Private Climate Litigation’ (PCL). These cases often explore uncharted waters.

Throughout the three decades since the adoption of the United Nations Framework Convention on Climate Change (UNFCCC) in 1992, anthropogenic climate change has been approached as an issue to be dealt with by States, co-ordinated at the intra-governmental level under the aegis of the United Nations (UN). This State-centric approach assumes that States are willing to, and actually capable of, collectively ‘governing’ climate change, thereby achieving the ultimate goal of the UNFCCC – stabilising atmospheric greenhouse gas concentrations at a level that would prevent dangerous anthropogenic interference with the climate system (UNFCCC article 2) as specified through the Paris Agreement’s peak temperature goal.Footnote ⁶ However, global greenhouse gas emissions continue to reach new record levels each year.Footnote ⁷ The lack of sufficient action and ambition on the part of governments is expressed through their Nationally Determined Contributions (NDCs) under the Paris Agreement, which are far from being aligned with a pathway compatible with the Paris Agreement’s peak temperature goal; worse, emissions are projected to further increase based on current NDCs.Footnote ⁸ Accordingly, considerable doubt arises as to whether placing responsibility to address climate change on States alone – while neglecting the business sector – is justified.Footnote ⁹ The situation just described calls for taking a closer look at the responsibility of non-State actors,Footnote ¹⁰ and in particular corporations, whose enormous greenhouse gas emissions and global influence due to their economic power are comparatively ignored in the climate change context.Footnote ¹¹

Traditionally, and although this has been contested, only States are viewed as subjects of international law, including in international climate change law.Footnote ¹² Since the 1970s, numerous attempts to define corporate obligations under international law concerning environmental and social issues were made (for the most part, under the aegis of the UN), but failed.Footnote ¹³ Thus, by and large, corporations and other non-State actors have been ignored (or rather, excluded on purpose) as relevant actors with responsibilities to ‘address’ climate change at the international level (either through mitigation, adaptation, or any form of redress for loss and damage).Footnote ¹⁴ Notably, some large corporations and industry associations have lobbied heavily against the introduction of stronger climate regulations.Footnote ¹⁵ Due to the perceived lack of responsibility under international law, companies are primarily concerned with climate-related national regulations, which clearly apply to them directly. At the domestic and regional (European Union) levels, corporations (and in particular ‘multinational’ or ‘transnational’ enterprises) operate in a complex and highly fragmented web of technical regulations consisting mainly of carbon taxation schemes, product standards, corporate reporting obligations, and (increasingly, and especially in Europe) due diligence requirements.Footnote ¹⁶ And yet, although it would thus seem that corporations are largely unaffected by international climate change law, the ostensibly clear lines between the public sphere (where international law is undoubtedly applicable) and the private sphere (where this is less clear) are heavily blurred. The separation between the public and the private sectors is particularly delicate in the context of climate change. In fact, many of the world’s largest industrial corporate greenhouse gas emitters and the vast majority of the world’s remaining fossil fuel reserves are state-controlled.Footnote ¹⁷ This public/private divide is rarely discussed in climate law literature,Footnote ¹⁸ and will not be explored further here, but it is important to keep in mind in the broader context of PCL.Footnote ¹⁹

Together with growing regulatory activity across jurisdictions, financial market developments due to the broad recognition that climate change entails significant financial risks to corporate and global financial stability, and increasing shareholder engagement on climate change, PCL can be viewed as one of the main drivers of the increasing focus on ‘Corporate Climate Responsibility’, as the author has argued elsewhere.Footnote ²⁰ And yet, as Bouwer observes, ‘the extent of private law’s potential contribution [to climate change litigation] tends to be overlooked’.Footnote ²¹ Aiming at contributing to filling this gap, this chapter offers a brief conceptualisation and taxonomy of PCL. The remainder of the chapter is structured as follows. The second section proposes a definition for the term PCL and identifies its main categories. The third section sketches various characteristics of PCL. The chapter then concludes by offering brief remarks as to whether PCL can be viewed as a tool for implementing climate change policies. The chapter does not by any means attempt to provide a comprehensive overview of the complex topic, but rather aims at systematising the phenomenon of PCL via select cases in order to outline a foundational taxonomy.

18.2 What is Private Climate Litigation?

18.3 Characteristics of Private Climate Litigation

18.4 Conclusion

International law and national climate regulations barely address the responsibilities of corporations and other non-State actors. And yet, it is impossible to ignore the crucial role of corporations (and their key corporate governance constituencies including the board of directors, shareholders, and others) in the transition to a global net-zero economy by mid-century. Undoubtedly, corporations are increasingly affected by the growing focus on corporate climate responsibility. PCL is one of the drivers of this development, in addition to increasing regulatory activities, shareholder engagement on climate change, and the growing recognition of unprecedented climate change-related financial risks. In that sense, PCL points to (and potentially contributes to filling) an accountability gap for corporations.

When thinking about the effectiveness of PCL to implement climate policies,Footnote ⁸⁸ one key aspect to consider is that, as is well-known, judicial proceedings may take years until a final decision is rendered. For instance, the matter of Lliuya v. RWE has reportedly suffered substantial delays due to the COVID-19-related inability of German judges to travel to Peru.Footnote ⁸⁹ Against the need to achieve substantial reductions of greenhouse gases by 2030 in order to keep somewhat realistic chances of limiting temperature rise under the Paris Agreement’s peak temperature goal,Footnote ⁹⁰ can litigation deliver results fast enough, even if the plaintiffs succeed? Or is the judicial process simply too slow in the face of escalating climate change impacts, rendering PCL a moot exercise? Be that as it may, recent examples show that quicker outcomes are possible through settlements,Footnote ⁹¹ and that the effectiveness of PCL may be increased by courts declaring their orders to be immediately effective.Footnote ⁹² Further, non-judicial bodies such as NCPs under the OECD Guidelines for Multinational Enterprises may provide ‘results’ more swiftly.

As regards the need for further research, in addition to the multitude of legal questions triggered by PCL, more systematic research on PCL extrapolated from national law settings would be useful to better grapple with the phenomenon of PCL from a comparative point of view. Such research would benefit from improved accuracy of the existing climate change litigation databases. On a final note, while only time will tell whether PCL will contribute to deliver on what is probably its main purpose, to affect corporate behaviour as regards climate change, we can conclude that this type of litigation has reached a level of sophistication and likelihood of success that corporations and diligent directors certainly cannot ignore.

19.1 Introduction

The data speak for themselves: to limit the increase in global average temperature (well) below 2°C, carbon dioxide (CO₂) emissions need to decline by about 25% with respect to 2010 levels by 2030, and reach net zero around 2070. Deep reductions are required for non-CO₂ emissions as well.Footnote ¹ Contrary to what would be necessary, the projected total greenhouse gas emissions level in 2030 is expected to be some 16% higher than in 2010.Footnote ²

As summarised in a report issued by the Secretariat of the Conference of the Parties (COP) serving as meeting of the Parties to the Paris Agreement in September 2021, reported data urgently demand a significant increase in the level of ambition of nationally determined contributions (NDCs) thus far adopted by the State parties by 2030 in order to attain the emission levels suggested by the Intergovernmental Panel on Climate Change (IPCC) for keeping the increase in the global average temperature well below 2°C, and possibly limiting it to 1.5°C.Footnote ³ Indeed, even if all States fully implemented their current NDCs, the trend would continue well above the 1.5–2°C target. The future does not bring good news – as the United Nations (UN) Environment Programme’s Emission Gap Report 2021 shows that, despite the pledge that COVID-19 recovery spending would prioritise a transformation towards a low-carbon economy, recovery funds have been insufficiently supporting clean energy and natural capital investments.Footnote ⁴

Given this state of affairs, it does not come as a surprise that in the last few years many civil society movements have wisely started strategic lawsuits against governmentsFootnote ⁵ in the national tribunals of several States,Footnote ⁶ as well as in international human rights courts and treaty bodies, to complain about insufficient efforts to cut greenhouse gas emissions. The aim of such legal actions is putting pressure on States to accelerate efforts and adopt effective mitigation and adaptation measures to address a phenomenon that does not leave more time to act. For this reason – as is well known – plaintiffs usually do not ask national tribunals to condemn governments to seek reparations for injuries caused by State inaction to prevent climate change, but only demand to order the improvement of efforts to mitigate climate change and bring emissions in line with the obligations stemming from the United Nation Framework Convention on Climate Change (UNFCCC) and the Paris Agreement.

An identical rationale is in the drawback of the debate on the utility of a judgment or an advisory opinion of the International Court of Justice (ICJ) on States’ obligations and responsibility as regards climate change. Many studies have also highlighted the positive implications of an ICJ advisory opinion or judgment for strategic ligation in national and international tribunals and treaty bodies, sometimes confusing it with the contribution an ICJ judgment or advisory opinion may give to resolving disputes between States in this same field. The purpose of this study is first to distinguish these different playgrounds and second to elaborate on how a prospective ICJ stance on the existence and content of some rules of international law may effectively help national tribunals and international tribunals and treaty bodies to overcome the legal arguments usually governments oppose to contest jurisdiction, or otherwise rebut the plaintiffs’ claims. While several studies have already dealt with this topic,Footnote ⁷ these have not clearly taken into account the nature of the appeals brought before national and international tribunals and treaty bodies, as civil rather than constitutional or other complaints, as well as the rationale underpinning such strategic litigation. This has resulted in a missing link between, on the one hand, questions that it is suggested the ICJ should properly deal with in a prospective judgment or advisory opinion, and on the other hand clarifications on the existence and scope of international rules that national and international tribunals as well as treaty bodies apply to resolve disputes.

This study is even more necessary in the light of the fact that in March 2023 the UN General Assembly adopted a resolution concerning the respect for an Advisory Opinion of the International Court of Justice on the Obligations of States in respect of Climate Change, upon a diplomatic initiative by Vanuatu.Footnote ⁸ The UN General Assembly asked the Court to provide an opinion on the following:

Our study will thus seek to understand how some of the questions the Court has been requested to answer may impact pending and prospective cases before national and international tribunals and treaty bodies.

19.2 The International Court of Justice’s Contribution to Inter-State Disputes on the Violation of the No-Harm Principle

It is not disputed that the ICJ will not be, in the near future, called upon to resolve disputes concerning the violation of the obligation to adopt mitigation measures as they stem from conventional rules (UNFCCC and Paris Agreement). Indeed, at the time of their ratification no States Parties, except for the Netherlands,Footnote ¹⁰ have adopted a written instrument that, in respect of any dispute concerning the interpretation or application of climate change agreements, recognises the jurisdiction of the ICJ as compulsory, in relation to any party accepting the same obligation.Footnote ¹¹

By contrast, an inter-State dispute based on the violation of the customary no-harm rule, imposing upon any State the obligation not to allow activities under its jurisdiction or control that impair the territory and environment of other States, may be brought before the ICJ on the basis of those declarations that recognise the jurisdiction of the Court as compulsory (Article 36(2) of the ICJ Statute).Footnote ¹² The ICJ has iterated the existence of such a rule on several occasions, and in the Pulp Mills on the River Uruguay case held that this was an obligation of due diligence, as ‘[a] State is … obliged to use all the means at its disposal in order to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the environment of another State’.Footnote ¹³ This provides the Court with the opportunity to take a clear stance on interesting questions concerning the application of the principle to climate change.

First, the Court could clarify whether the no-harm rule is applicable to harm deriving from lawful activities that cause the emission of greenhouse gases. In particular, the Court should clarify whether in the case of harm arising from climate change a sufficient causal nexus can be considered to exist between the alleged and ineffective defendant State’s conduct and the injury suffered by the complaining State, triggering the international responsibility of the defendant State. Second, in the case of a positive answer, the Court should consider the applicable standard of due diligence.Footnote ¹⁴ Third, in a contentious case the Court could be called to clarify the consequences of the violation of the no-harm rule.Footnote ¹⁵

Furthermore, any ICJ judgment would have to deal with the complex questions of the division of responsibility among States and the content of the obligation to provide reparation for injury caused by climate change.Footnote ¹⁶ This entails explaining whether and how, in the case of wrongful conduct based on raising global temperatures, involving a plurality of States, article 47 of the 2001 International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) is applicable,Footnote ¹⁷ or rather other customary rules have developed, superseding article 47, as some scholars argue.Footnote ¹⁸ As is well known, article 47 provides that, where there is a plurality of responsible States for the same wrongful act, each State is in principle separately responsible for attributable conduct.Footnote ¹⁹

Moreover, the Court will have to assess what the content of the obligation to provide reparation for injury is; namely, whether there is an obligation to make full reparation, as established in customary international law codified in the ARSIWA, or whether this duty is superseded in climate cases by a new rule establishing an obligation to provide alternative forms of reparation, but not necessarily full reparation.Footnote ²⁰

19.3 Strategic Litigation before National and International Jurisdictions and Treaty Bodies

Although an ICJ judgment on an inter-State controversy concerning climate change would be challenging and interesting for international scholars and the development of international law, this remains a theoretical exercise rather than a concrete possibility, at least in the near future. According to some scholars, it wouldn’t even be desirable to enter such a dispute, as no complaint could be brought against the main greenhouse gas emitters, namely the United States – which withdrew its acceptance of the ICJ’s jurisdiction after judgment was handed down in ‘Military and Paramilitary Activities in and Against Nicaragua’ – the People’s Republic of China (PRC), and Russia, which have never accepted the compulsory jurisdiction of the Court.Footnote ²¹

Be they convincing or not, these reasons make it preferable to set aside the hypothesis of an inter-State dispute and to focus on the impact that an ICJ advisory opinion may actually have on noteworthy strategic litigation currently ongoing in national and international tribunals and treaty bodies. An impressive number of claims have indeed been brought before national tribunals against governments. Some cases have recently been decided by human rights treaty bodies and others are pending in international tribunals. Thus, it is more likely that an ICJ advisory opinion concerning the interpretation of well-selected rules of international law actually support national and international tribunals that are confronted with the new challenge of climate change.

Appeals lodged before national tribunals usually concern the civil liability of governments towards individuals or private legal persons, particularly non-governmental organisations (NGOs), because of their ineffective policies to counter climate change or the unconstitutionality of laws implementing the State international obligation to limit greenhouse gas emissions, which are considered too vague, and thus not in conformity with constitutional obligations (where applicable) to protect individuals as well as the natural environment or the constitutional individual right to a healthy environment. Before appeals, national tribunals must frequently face similar legal obstacles. Governments usually contest the locus standi of the claimants, especially their victims’ status, the competence of the tribunal to deal with the complaints – mainly by invoking the political question doctrineFootnote ²² – as well as the impossibility of establishing the State contribution to climate change or its irrelevance, given that global warming involves several States. However, while several claims have been unsuccessful, national tribunals have sometimes overcome defensive arguments, duly adopting historical judgments.

Positively, the Netherlands’ Hoge Raad (Supreme Court) compelled the Dutch Government in its Urgenda ruling to cut al least of 25% of its greenhouse gas emissions a result of a duty of care construed from the European Convention on Human Rights (ECHR).Footnote ²³ The German Bundesverfassungsgericht (Federal Constitutional Court) held the provisions of the Bundes-Klimaschutzgesetz (Federal Climate Protection Act), governing national climate targets and annual emission amounts allowed until 2030, incompatible with the basic constitutional rights of the plaintiffs to the extent that they lack sufficient specifications for further emission reductions from 2031 onwards, making reductions after 2030 necessary to avoid infringing practically every individual constitutional freedom.Footnote ²⁴ The French Conseil d’État set aside the implicit refusal of the French Government to take appropriate measures to curb greenhouse gas emissions produced in France and ordered the Government to adopt all necessary measures to bring greenhouse gas emissions into conformity with reduction objectives set forth in the Code de l’énergie (‘Energy Code’, Law 100–4) and in annex I to EU Regulation 2018/842 before 31 March 2022.Footnote ²⁵ The Supreme Court of the Republic of Ireland quashed the Government’s National Mitigation Plan as inconsistent with the Climate Action and Low Carbon Development Act 2015,Footnote ²⁶ as this law failed to specify the way to achieve the ‘transition to a low carbon, climate resilient, and environmentally sustainable economy’ by 2050. The Court held the Plan ‘excessively vague or aspirational’.Footnote ²⁷

Negatively, the Swiss Bundesgericht (Federal Court) dismissed the appeal of the ‘association of climate-seniors of Switzerland’ and four elderly plaintiffs because it denied their status of victims. The Court there found that the plaintiffs were not sufficiently affected in terms of individual rights as protected under the ECHR, especially the right to life and the right to respect for private and family life, in order to assert an interest worthy of protection within the meaning of the Bundesgesetz über das Verwaltungsverfahren (Federal Law on Administrative Procedure).Footnote ²⁸

The Norwegian Høyesterett (Supreme Court) applied the political question doctrine to limit the judicial review of laws and governmental legislative acts concerning environmental protection and established a very high threshold for review. Indeed, the Court found that article 112 of the Grundlov (Constitution), which embeds the right to a healthy environment, can be invoked directly before national tribunals in cases concerning the alleged unconstitutionality of legislative acts, but limited judicial review to cases where the claimants allege that the Parliament grossly neglects its duties under article 112. On the basis of such a restrictive interpretation, the Supreme Court upheld the validity of a royal decree awarding petroleum production licences concerning the Norwegian continental shelf in the Barents Sea.Footnote ²⁹

The lawsuits lodged with international tribunals and treaty bodies are all concerned with the alleged violation of individual rights, including the rights to life, private and family life, cultural identity and the right not to be discriminated protected under human rights treaties.Footnote ³⁰ These have encountered common procedural and substantial obstacles. Frequently, the plaintiffs have not exhausted domestic remedies before acting in international fora, justifying the omission on the basis of various claims. In fact, first, because the claimants act simultaneously against several States, exhausting domestic remedies would allegedly require too much time and money. Second, as global warming is rapidly increasing, no time would be left to resort to domestic litigation. Another recurrent difficulty is that several plaintiffs are not under the territorial jurisdiction or control of the States they sue in international human rights tribunals or treaty bodies. To date, only two cases have been decided, that is, Sacchi et al. v. Argentina et al. in the UN Committee on the Right of the Child (UNCRC),Footnote ³¹ and Daniel Billy et al. v. Australia in the UN Human Rights Committee (UNHRC). Although the UNCRC dismissed the claim based on non-exhaustion of domestic remedies,Footnote ³² it adopted a very forward-looking interpretation of the notion of ‘jurisdiction’ under article 2 of the Convention on the Rights of the Child, leaving the door open to future climate complaints.Footnote ³³ The UNHRC considered that by failing to discharge its positive duty to implement adequate adaptation measures and protect the plaintiffs’ home, private life and family, Australia violated their rights under article 17 of the International Covenant on Civil and Political Rights. Likewise, the UNHRC found that Australia’s failure to adopt timely adequate adaptation measures to protect the plaintiffs’ collective ability to maintain their traditional way of life and to transmit to future generations their culture, traditions, and use of land and sea resources discloses a violation of the State positive obligation to protect the right to enjoy a minority culture (article 27). The UNHRC duly recommended that Australia not only provide the plaintiffs with adequate compensation for the harm suffered, but also that it engage in meaningful consultations with their communities to conduct need assessments and uphold and effectively improve measures to secure the safe existence of communities in their islands, including measures to prevent similar violations in the future.

19.4 Issues the International Court of Justice Should Deal With

19.5 How an International Court of Justice Advisory Opinion May Support National and International Tribunals

Once introduced in the domestic legal systems of States that do not yet recognise them at the constitutional level, the general principle of international law on intergenerational equity and the customary rule on the individual human right to a clean, healthy and sustainable environment might be relied upon by national tribunals to interpret domestic law in conformity with them, where general international law ranks higher than national legislation. Moreover, constitutional courts might declare national legislation unconstitutional when not in conformity with such international norms.

An ICJ advisory opinion interpreting the obligation to adopt NDCs so as to impose on States effective mitigation policies might allow constitutional courts in States where treaties have some constitutional bearing to declare vague domestic laws adopted to implement ineffective NDCs not in conformity with constitutional law. Furthermore, it would be important for the ICJ to endorse a reading of the obligation to adopt NDCs that really contributes to achieving the UNFCCC and Paris Agreement’s main aims of stabilising greenhouse gas emissions at sustainable levels. To this end, the Court might argue that reduction targets recommended by the IPCC manifest the consensus of the Members States,Footnote ⁵⁶ as the Supreme Court of the Netherland stated in Urgenda.Footnote ⁵⁷ This would provide national tribunals with a powerful tool to rebut the argument States have frequently put forward against the competence of national judges, namely the political question doctrine. The ICJ would in doing so neither overstep its role nor intrude in the law-making process and would compel States to acknowledge their responsibility.

Lastly, an ICJ pronunciation on the extraterritorial application of human rights treaties as those adopted by the IACtHR and the UNCRC would suggest to international tribunals and treaty bodies a uniform path to follow when they are asked to interpret the notion of jurisdiction in the case of harm caused by global warming. If the Court favoured an extensive interpretation of the notion of jurisdiction, it would encourage cautious tribunals, such as the European Court of Human Rights (ECtHR), to support an extensive view without, at the same time, fully embracing the so called ‘functional’ approach to the notion of jurisdiction. The ECtHR has indeed adopted a case-by-case interpretation of extraterritoriality, shaping it along the lines of the specific features of the dispute. On the other hand, the fear that such a reading may open the door to an excessive number of lawsuits before international tribunals and treaty bodies might convince the ICJ not to support it. However, there are remedies to this side effect. Notably, the ECtHR can rely on the pilot judgment procedure to contain the multiplier effect of lawsuits addressing human rights violations stemming from global warming. If the applicants were to complain about the existence in a State of a systemic policy deficiency to reduce greenhouse gas emissions, according to its Rules of Procedure,Footnote ⁵⁸ the Court could – even ex officio – postpone the examination of all actions arising from the same plea against the same State pending the adoption of remedial measures by that responsible State. This would help the Court to manage the claims and limit the submission of further lawsuits at least against the same State, in line with the rationale that underpins strategic litigation in national courts. In fact, if the Court found a violation of the ECHR, it should then indicate the type of reparatory measures (both individual and general) that a defendant State must adopt to bring a dysfunction in line with that Convention.

19.6 Conclusion

This contribution has provided an attempt to identify what international law rules the ICJ should necessarily take into account, among the many it was asked to consider in the Request for an Advisory Opinion on the Obligations of States in respect of Climate Change, to make a real contribution to strategic climate litigation in national and international fora. In particular, it would be urgent for the Court to provide an advisory stance on the nature of the duty to curb carbon emissions via NDCs, its extraterritorial effects and implications for future generations. In all likelihood, not all States would be ready to submit to an opinion of the ICJ on essential climate issues. This is particularly the case for the conventional rule obliging States to adopt NDCs, and the notion of jurisdiction under human rights treaties. States might prefer keeping the content of rules on NDCs and extraterritoriality undefined to be free and adopt softer mitigation measures that are less demanding on private (energy) companies operating within their jurisdiction, as well as for individuals living there.

20.1 Introduction

Climate change is not only about science, and science is not all we need to mitigate climate change. Science has little impact on how societies perceive themselves and the world around them, and thus it has little direct impact on communal and individual behaviours and attitudes. It is a social discourse shaped by dominant social attitudes and cultural convictions, fashions, politics, and media content that has the most significant impact on a broader social response to climate change. Ultimately, these are stories we tell that inform our attitudes, motivate our actions, and have the potential to influence policies.

Enric Sala, the conservationist and former academic, confesses that it was only when he left academia that he realised that having enough information does not necessarily lead leaders, policymakers, or broader society to making rational decisions. Neither do increasingly alarming reports on climate change and environmental degradation spur people into action. There are two basic assumptions Sala points to that are crucial for thinking about climate action. The first one is that climate change action is, to a large degree, about communication, which so far has seemed insufficient and ineffective. The second assumption is that simply stating the facts is far from adequate.Footnote ² Irrespective of the evidence, gravity, or relevance of the information, as Sala insists, ‘[e]nticing both a lifestyle and policy decisions that diminish climate change needs more than communicating facts’.Footnote ³

However, climate change is a complex problem to communicate. Talking about environment and climate does involve a lot of science. It is not easy to translate scientifically understood urgency into a call for action to be taken seriously by individuals for whom climate change is slow and unobservable on an everyday basis. If something cannot be seen or fully recognised, is not relatable or contextualised, it is unlikely to engage an audience on a personal level and trigger emotions that may motivate action. If we do act, our action does not usually bring immediate results and in this sense is meaningless. If talking about climate change is limited to communicating abstract and distant risks, we are discouraged from listening critically and engaging. After all, people prefer to leave difficult and unrelatable problems, even those considered important, to be taken care of at a higher, collective, and non-personal level. We are content to think government will know what to do, will take proper and informed action and implement relevant public policies, even though we know well that public policies are driven by the preferences and demands of citizens. Finally, talking about climate has become a politically polarised issue, and is often considered biased, manipulative, and divisive, not only along the line separating those who believe in science from those who distrust it. As such, narrating climate change to encourage deep reflection, change thinking patterns, inspire action, and, ultimately, decision-making processes, has become a major challenge in responding to climate change.Footnote ⁴

Over the years numerous analyses of environmental discourse have been developed, approaching the subject from various political, sociological, and cultural perspectives.Footnote ⁵ Particular approaches to nature have emerged as the main elements defining and differentiating these approaches. Examining the existing literature, Gustafsson identified three most common approaches to nature:Footnote ⁶ (1) nature narrated as a resource for society; (2) nature as an ethical entity and the sources of emotional and moral values; and (3) nature as an object of knowledge. Within these views of nature, particular environmental discourses emerge: (1) the sustainable development discourse and the discourse on ecological modernity; (2) the Arcadian discourse and the poetic discourse (with humanity being outside or part of nature respectively); and (3) scientific discourse and the ecosystem discourse.Footnote ⁷

Similarly, there are various approaches to communicating science and different forms of public engagement. They include the contextual model or the public engagement model,Footnote ⁸ the lay expertise model,Footnote ⁹ the fear and security argument,Footnote ¹⁰ or the economic argument.Footnote ¹¹ These models offer different opportunities and challenges in their attempt to expand the way we understand, deal with, and frame science communication with the public.Footnote ¹² This chapter focuses on an approach that still does not have a unified or coherent theoretical framework, but has been proven to engage audiences, allow diversity, accept abstraction, and encourage multiple interpretation and creativity. Assuming that most effective communication incorporates social and cultural contexts, and that climate change is a societal and cultural story, as Max Boykoff explains,Footnote ¹³ the chapter suggests a narrative approach to storytelling as a means of overcoming imaginative limitations and radically rethinking climate change and human impact on the Earth. Because facts and figures are ‘at best necessary but rarely sufficient to create active behavioural engagement’,Footnote ¹⁴ the chapter argues that culturally situated storytelling, when informed and enriched by deeper reflection on the Anthropocene and human–nature relationship, offers a valuable approach to climate change, the contemporary condition, and to thinking who we are as humans.

For the purposes of this chapter, storytelling means sharing stories that enable us to make sense of the world, events, and ourselves. It is a way of sharing content to provoke reflection by describing events, contextualising them, engaging emotions, and identifying personal connections and universal patterns. In this way, storytelling improves understanding, affects worldviews, and stimulates action.Footnote ¹⁵ Culturally situated narratives and individually relatable stories neither oppose a rational stance on climate change nor challenge scholarly deliberations about climate change, but are believed to be necessary sources for deeper reflection, motivation, and moral impact.Footnote ¹⁶ They are also a necessary component of climate literacy and thus of individual, regional, and global responses to climate change. If treated seriously, as Moezzi, Janda and Rotmann call for in their 2017 special issue of the Energy Research and Social Science journal, stories can become tools in effective climate risk communication that brings effective behavioural changes, entices moral reflection, and motivates a more sustainable living.Footnote ¹⁷

Building on the existing literature, Harris provides a concise overview of the features of storytelling relevant in the context of communicating social concerns such as climate change.Footnote ¹⁸ It is relevant and useful to quote the fragment in full:

The special issue of Energy Research and Social Science edited by Moezzi et al. presents research that looks into ‘collecting and interpreting stories as data, as modes of inquiry and as forms of engagement’.Footnote ¹⁹ The issue acknowledges the multitude of directions climate research can take using stories as research objects. It presents various ways in which research in climate change uses the notion of stories to deal with specific topics such as climate change communication, news coverage of extreme weather events, traditional weather knowledge systems, public apathy and engagement, or institutional ‘storytelling’ – that is, methods used to convince the public to adopt certain mindsets.Footnote ²⁰

The 2018 book Climate Change and Storytelling: Narratives and Cultural Meaning in Environmental Communication by Annika Arnold also discusses methods and stresses the value of narrative and literary theory in improving our understanding of social and political issues of the climate change debate. Referring to the existing research and approaching stories as modes of inquiry and effective forms of engagement with a broader public (through media and public initiatives), the chapter opens with a discussion on effective communication and transformations taking place in the approach to communicating climate change that have a potential to motivate communities, challenge social passivity, and encourage agency. The chapter adopts a broad understanding of ‘story’ and ‘storytelling’ to refer to ways of conveying information, events, and ideas that include a character and a plot, are contextualised and personalised, engage emotions, and allow space for interpretation. It adopts Kieran Egan’s view that ‘[s]tory’ does not necessarily imply a fictional narrative; rather, it involves ‘the narrative shaping of any content’.Footnote ²¹

While a shift from reporting facts to telling stories has been taking place, and the significant role of emotions, personalisation, and relatability of a story has been widely recognised, both in research and popular media, what is also observable is the ongoing split (in mainstream media and public discourse) between social/cultural topics and topics dealing strictly with science and the environment. This division, and its consequences for communicating climate change, will be discussed in the first section of the chapter in the form of a brief analysis of data gathered for the report on climate change narrative’s shortcoming developed by ‘The Twenties’ initiative.Footnote ²² This split seems to replicate a centuries-long and still prevalent paradigm of duality between culture and nature. It also resonates a broader philosophical reflection on our inability (or resistance?) to break thinking paradigms, surmount imaginative limitations and, ultimately, overcome our inability to ‘see things’.

This chapter argues, particularly in its last section, that a broader acceptance of a narrative approach and storytelling as a mode of inquiry may help the efforts of interdisciplinary scholarship focused on reconfiguring concepts,Footnote ²³ renegotiating established paradigms, and reformulating premises and theoriesFootnote ²⁴ in response to an ‘Anthropocene turn’.Footnote ²⁵ It can provide means and channels for this higher-level reflection to enter popular discourse, by facilitating inter- and trans-disciplinary exchanges and strengthening the connections between science and humanities. Even though the use of stories in communicating science and the knowledge of the world has been long recognised, strong reservations persist. Stories remain associated with subjective and unverifiable information, and are treated as being firmly within the realm of arts and humanities, rather than science. According to Moezzi et al., ‘stories simplify, lie, change, and resist verification. They do not lend themselves to experiments, tests, or sampling. This makes them relatively unsuitable, and in fact uncomfortable to deal with, within current scientific paradigms’.Footnote ²⁶ Breaking these paradigms has become a goal of the reflection on environmental rhetoric of the twenty-first century with storytelling proving its potential.Footnote ²⁷ The main question is broad and focuses on how we should talk about climate change, both in terms of framing the climate change narrative to encourage change in everyday behaviours and reframing existing paradigms, patterns, and approaches to inspire deeper transformation, including a radical reconfiguration of concepts we use to make sense of the world.

20.2 Communicating Climate Change

20.3 Conclusions

Climate change is the most serious challenge of the Anthropocene, and so climate change communication needs to be taken suitably seriously, enriched with new ways of conceptualising, understanding, and imaging the world and its transformations. Over the centuries, telling stories was used to confront the unknown, encourage thinking about solutions, illuminate opportunities, and give hope. Now stories and storytelling can be more useful than ever.

The focus on stories and storytelling in the climate change communication means, among other things, actively listening to communities and their stories to understand specific contexts and connections; drawing on and developing narrative techniques and knowledge to connect and motivate individuals, communities, and a broader audience; and strengthening the connections between science and humanities to open new perspectives in conceptualising and communicating climate change. Such a focus can provide a different set of data and tools to include emotional, psychological, symbolic, cultural content and perspectives.Footnote ¹⁰⁴ It can challenge our thinking about, or rather through, grand concepts such as the ‘truth’, ‘nature’, or ‘human’, effectively reshaping the framework within which our understanding of the world and ourselves evolves. This includes challenging, for example, the idea of duality of nature and culture (human versus natural history), thus connecting social issues with environmental issues in the public discourse. Stories reduce the abstract dimension of science, bringing ‘the abstract risk closer to the individual’, while still using some degree of abstraction to inspire creative thinking.Footnote ¹⁰⁵ This helps to encourage trust in science and what may be a more effective use of facts in public space. Stories and storytelling allow space for interpretation and agency to think critically and, most importantly, act imaginatively. Finally, they encourage inter- and trans-disciplinarity, and thus novel perspectives, stressing the fact that, ultimately, discussions on climate change are discussions about who we are. In this sense, storytelling has a great potential to motivate individuals, communities and, as a result, legislators, to act.