Justice and choice of legal instrument under the Durban mandate: Ideal and not so ideal legal form

• Main Author: Lawrence, P
• Format: Book Part
• Language: English
• Published: Oxford University Press 2016
• Subjects: Law and Legal Studies; Law; Environmental and Natural Resources Law; Greenland; Ice Sheet
• Online Access: https://global.oup.com/academic/product/climate-justice-in-a-non-ideal-world-9780198744047?q=9780198744047&lang=en&cc=au; http://ecite.utas.edu.au/102419

At the farewell drinks at the end of my time working for the AustralianDepartment of Foreign Affairs and Trade, one of my colleagues reminded mehow I arrived at the office (Australian Mission to the UN in Geneva) late in theday and with a big grin said: 'We made fantastic progress after four hours ofnegotiations today: we removed two commas and added a square bracket!' It isindeed easy to be cynical about the UN treaty-making system. The currentsnail's pace in developing an effective global climate agreement only fuels thiscynicism. But global negotiations on a climate treaty remain extremelyimportant. This importance is linked to justice: an effective climate treaty isa necessary condition for not unfairly transferring the costs of climate changeonto future generations. Climate change will seriously impact current generationswithin their lifetime, with increased mortality from extreme weatherevents and tropical diseases (IPCC 2014b). But the most severe impacts will befelt by unborn generations, and these future generations will face risks ofirreversible harm to the global ecological system and climate. The IPCC 5thAssessment Report highlights some of these risks including the significant riskof meltdown of the Greenland ice sheet (IPCC 2014a). This chapter aims to explore the linkages between justice and politicalfeasibility in considering what type of instrument should emerge from theDurban negotiation process for a new global climate agreement and therelated issue of whether mitigation commitments should be binding or not.Put differently, what 'ideal' form should a climate agreement take in the 'nonideal'context of states being reluctant to take the required action in deeplycutting their greenhouse gas (GHG) emissions? The terms 'justice' and 'fairness'are used interchangeably in this chapter (see Section 6.2). The term'feasibility' is used to denote what is possible and probable given a numberof constraints including countries' current negotiating positions and thestructure of the treaty-making process (see Gilabert and Lawford-Smith2012: 809).